Devassia Joseph vs Mathai Joseph

M.M. Pareed Pillai, J.—CRP No. 2749 of 1985 is filed by the judgment debtor and CRP NO. 572 of 1986 is filed by the decree-holder, in E.P. No. 160 of 1984 in O.S. No. 100 of 1982 of the Sub Court, Thodupuzha. A decree was passed against the Defendant for realisation of certain amount. The decree holder applied for realisation of the decree amount by arrest and detention of the judgment-debtor pursuant to Order 21 Rule 37 notice. Judgment-debtor filed objection stating that due to financial difficulties he was unable to pay the decree debt. Proper enquiry was conducted by the executing Court. The executing Court held that the judgment-debtor is a person who can payment substantial portion of the decree debt. Judgment-debtor is a person who is employed in a private college. Without getting either the consent of the judgment debtor or decree-holder to pay the decree amount in instalments at the rate of Rs. 500 per months.

Counsel for the decree-holder submitted that the execution Court was thoroughly unjustified in passing the impugned order without ascertaining the consent of the decree-holder as provided under Order XX Rule 11(2) Code of Civil Procedure. The question that has to be considered is as to whether the executing Court can without ascertaining the consent of the decree-holder order payment of the decree amount in instalments. Order XX Rule 11(2) provides that in case where a decree is for the payment of money the Court may for sufficient reason by incorporating in the decree, after hearing the parties, before judgment an order that payment of the amount decreed shall be postponed or shall be made by instalments with or without interest, not withstanding any thing contained in the contract under which the money is payable. The position is different with regard to a case where a decree has already been passed. Rule 11(2) provides that after passing of any decree the Court can grant payment of the decree by instalments only with the consent of the decree-holder. It is only in a case where the decree holder gives consent to receive the decree amount in instalments the Court can allowed the judgment-debtor to pay the same in instalments. The position is very clear in view of Order XX. Rule 11(2) Code of Civil Procedure. Before making of an order under Order XX Rule 11(2) CPC consent of the decree-holder is mandatory. When an order is passed without such consent it is without jurisdiction. The executing Court has over-looked Order XX Rule 11(2) CPC and hence the order is not sustainable.

The order of the executing Court is hereby set aside. CRP No. 572 of 1986 is allowed. CRP No. 2749 of 1985 is without any substance and the same is dismissed. As CRP No. 572 of 1986 is allowed the decree holder is perfectly at liberty to take necessary further steps in execution.

Send back the records to the executing Court immediately.