Om Prakash vs Jammu and Kashmir Bank Ltd.

This is a revision application directed against an order of the District Judge, Jammu, dismissing the judgment-debtor applicant's appeal from an

order of the City Judge, Jammu, refusing to allow the payment of the decretal amount in instalments, on the ground that such an appeal is not

competent under Order 43, Rule 1 (ii) read with Order 20, Rule 11(2), Civil Procedure Code

We have heard the learned Counsel for the parties. There is no such clause as (ii) in the corresponding provisions of Order 43, Rule 1, CPC as

in force in the other States in India. Sub-rule (ii) of Rule 1 of Order 43 of our CPC runs as follows: ""(ii) an order under Sub-rule 2, Rule 11 of

Order passed without the consent of the parties"". The learned District Judge accepting the contention of the decree-holder non-applicant has held

that an appeal by the judgment-debtor from an order rejecting his application to fix instalments for payment of the decretal amount does not fall

within this sub-rule. The main argument of the learned Counsel for the non-applicant in support of this order of the learned District Judge is that a

reference to Sub-rule (2) of Rule 11 of Order 20, according to him, would show that an order would be made under this sub-rule only if the

executing court fixes instalments with or without the consent of the decree-holder as indicated in the sub-rule and that an order refusing to exercise

this discretion vested in the executing court under this sub-rule would not be an order under Sub-rule (2).

After careful consideration of Sub-rule 2 of Rule 11 of Order 20, CPC and all the other material to which our attention has been drawn by the

learned Counsel for the non-applicant, we are unable to accept this contention. Both the orders fixing instalments or refusing to fix instalments for

the payment of the decretal amount by the executing court would be made under Sub-rule (2) of Rule 11 of Order 20 and an order under this sub-

rule would be appealable under Order 43, Rule 1 (ii), CPC If it is passed without the consent of the It would be doing nothing short of violence the

language of Sub-rule (ii) of Rule 1 of (sic) 43 confine its application to those orders alone by which fixation of instalments for payment of the

decretal amount is made.

If the Legislature wanted to confine the right of appeal only to those cases, in which an order granting application for instalments was made, it could

have said so specifically to manifest that intention as it has done in so many other clauses of Rule 1, Order 43, e.g., Sub-clause (d), where an order

under Rule 13 of Order 9 rejecting an application for an order to set aside a decree passed ex parte has been made appealable. A reference to

Sub-rule (2) of Rule 11 of Order 20 of our Code would show that the executing court can fix instalments with the consent of the decree-holder or

without such consent for special reasons which are to be recorded. The words ""consent of the parties"" appear nowhere in Sub-rule (2) of Rule 11

of Order 20 but in Order 43, Rule 1 (ii), Civil Procedure Code, the words used are ""an order under Sub-rule (2), Rule 11 of Order 20 passed

without the consent of the parties"". These words are very wide and include the consent of the judgment-debtor. An order rejecting an application

for instalments under the afore-mentioned Sub-rule (2) would clearly be against the consent of the judgment-debtor.

A reference to Note 14 of the Chitaley's CPC (Act V of 1908) under Order 20, Rule 11 (1951 Ed. at p. 2114) would show that where an

order granting a decree for in-stalments is made under Sub-rule (1) of Rule 11 of Order 20 it will of course be incorporated in the decree itself and

can, therefore, be attacked in an appeal against the decree but where it is not so incorporated the order will not be appealable because that Code

as already indicated does not contain provision similar to one incorporated in Sub-rule (ii) of Rule 1 of Order 43 of our Code referred to above.

In Rangoon and Nagpur, however, Sub-rule (2) of Rule 11 of Order 20 of Act 5 of 1908 which in other Indian States does not give the executing

court power to fix instalments for the payment of the decretal amount without the consent of the decree-holder has been amended and gives the

executing court almost similar power as is contained in our Sub-rule (2) of Rule 11 of Order 20. Some rulings of the Rangoon High Court have

been cited before us to show that there both orders allowing an application for instalments or refusing such an application by the executing court

have been held to be appealable u/s 47, CPC as relating to the execution, discharge or satisfaction of the decree within the meaning of that section.

But it is not necessary to go into that question as in our view appeal in this case is competent under Order 43, Rule 1 (ii), Civil Procedure Code

For the foregoing reasons we accept this revision application and setting aside the order of the learned District Judge we direct him to restore

the appeal to its original number and dispose of it on its merits and according to law. Costs shall abide the result.