Rani Vishanath Kumari vs Sonu Lal and Others

Wort, J.—This is an appeal from the order of the Subordinate Judge of Gaya made on 23rd July 1938 in an application by the judgment-debtor u/s 11, Bihar Money-lenders Act, to be allowed to pay a certain decree by instalments. There is also an application in revision against the order. I will say at once that the appellant with draws the appeal. The only question therefore is the application to revise the order to which I have just referred. The learned Judge dismisses the application on the ground (I am using his own words) that the judgment-debtor comes with this application only when properties are going to be sold and did not choose to pray for instalments when the decree was passed.

It is quite obvious that that is no reason for declining to consider the merits of the case. The facts are quite contrary to those which are indicated by the learned Judge. The execution, as the learned Judge points out himself, was levied on 20th December 1937 and 5th August 1938 was the date fixed for the sale; and it was between the date of the first levying of the execution and the date fixed for the sale that the petitioner was given a new right by the Legislature, a right to make an application to be allowed to pay his decree by instalments. That order of course is to be made after considering all the circumstances of the case u/s 12 of the Act.

The reason which the learned Judge gave for declining to consider the merits of the case is in my judgment no reason at all. The order therefore of the learned Judge in the Court below must be set aside and the matter is remanded to him to determine the question which came before him, namely whether the petitioner should be allowed to pay the decree by instalments. In determining that question the learned Judge will, as I have already indicated, consider all the circumstances of the case u/s 12, Bihar Money Lenders Act. The rule is made absolute with costs; hearing fee one gold mohur.

Meredith, J.

I agree.