Kewal Ram Bhiwani Ram vs Om Parkash Setia

Sat Pal, J.

This petition has been directed against the order dated 7.6.1997 passed by Civil Judge (SD) Fatehgarh Sahib. By this order, the learned Civil Judge has held that since there were two consecutive defaults in making the payment of two instalments by the judgment debtor, the judgment debtor will have to now make payment of the entire amount of the decree. Notice of this petition was issued to the respondent.

Mr. Chopra, the learned counsel appearing on behalf of the petitioner submits that in terms of the judgment and decree dated 2.12.1995, the judgment debtor was required to make payment of the amount of decree in six monthly instalments of Rs. 5,000/ each. He further submits that as per the decree, in case there were two consecutive defaults in making the payment of the six monthly instalments, the judgment debtor was required to make the payment of the entire amount of decree. He further submits that the amount of first instalment of Rs. 5,000/ was to be paid on 15.4.96 and thereafter payment of subsequent instalments after the expiry of six months was to be made. He further submits that in the impugned order itself it has been stated that bank draft with regard to the first instalment was sent by the judgment debtor to the decree holder on 14.10.1996 and as such there were not two consecutive defaults in making the payment of the amount of decree.

Mr. Bansal, the learned counsel appearing on behalf of the respondent, however, submits that the bank draft of Rs. 5,000/ was not received by the decree holder on or before 15.10.1996 but in fact was received on 4.11.1996.

It may be relevant to note here that after the amount of first instalment was received by the decree holder on 4.11.1996, another sum of Rs. 10,000/ was deposited by the judgment debtor in the executing Court in pursuance of the order passed by this Court on 27.8.1997 in this petition. The learned counsel for the petitioner has also shown the postal receipt bearing No. 2859 and photocopy of the bank draft dated 13.10.1997 and submits that bank draft for a sum of Rs. 5,000/ being the 4th instalment has already been sent to the decree holder by the judgment debtor on 13/14.10.1997. From these facts, it is clear that the judgment debtor has made the payment of fourth instalment and the amount of fourth instalment was required to be paid on or before 15.10.1997. The learned counsel for the petitioner further submits that petitioner shall continue making the payment of the six monthly instalments regularly in future.

In view of the facts stated herein above, I am of the opinion that impugned order dated 7.6.1997 cannot be sustained. Accordingly, the petition is allowed and the impugned order dated 7.6.1997 is set aside. The judgment debtor is allowed to make payment even by cheque but on or before the date when the instalment falls due.