K. Raman Dewaswam Chirayil vs Alleppey Central Coir Marketing Co-operative Society Ltd., Alleppey

P. Govindan Nair, J.—We doubt whether a petition similar to the one moved by the appellant-judgment-debtor for instalment payment of the due amount is maintainable. Our attention was drawn to the decision of the Madras High Court in V.P. Madhavan Nambiar Vs. Chaldean Syrian Bank Ltd. and Another, wherein it has been held that it would be just and fair to pass an order for instalment payment in the first instance before the judgment-debtor is committed to prison. Neither Section 51 nor Rules 39 and 40 of Order XXI provide for any instalment payments. It is clear that a decree for instalment payment can be passed only on consent of the decree-holder: Sub-rule (2) of Rule 11 of Order 20. We doubt whether the Court can direct in execution such instalment payment. We therefore dismiss this appeal. At the same time we make it clear that it is open to the judgment-debtor to raise the objection that he is not liable to be detained in prison. It is for the decree-holder to make out, if he wants the judgment-debtor arrested, that the latter had the means to pay the decree amount and had refused or neglected to pay the same or to make out any of the other circumstances provided u/s 51 of the Code of Civil Procedure.

There will be no order as to costs.