Rusi Dalai and Others vs Krushna Ballav Ghosh and Another

Harries, C.J.—This is an application for revision of an order passed by the learned Munsif ordering the payment of a decree in instalments. The petitioner executed a mortgage in favour of the opposite party on 10th October 1933, for Rs. 208 advanced to him in cash. Nothing was paid, and on 12th January 1939, a mortgage suit was filed. On 26th August 1939, a preliminary decree was obtained which was made final on 11th April 1940. Later, execution was applied for a sum of Rs. 562 approximately. The judgment-debtor applied for payment of the decree by instalments, and the learned Munsif directed that the judgment-debtor should pay the costs which amounted to Rs. 115 as a condition precedent to my order for instalments. The judgment-debtor did pay Rs. 115, and eventually the learned Munsif ordered, that the balance, namely, Rs. 447 should be paid by three quarterly instalments.

I am not sure that the learned Munsif had power to make payment of costs a condition precedent to an order for instalments. However, the matter does not arise because the amount had been paid.

It has been urged by Mr. P.C. Chaterji on behalf, of the judgment-debtor that there is nothing in the learned Munsif''s order to show that, in fixing these instalments, he has directed his mind to the relevant matters. This application of the judgment-debtor was made under Sections 13 and 16, Orissa Money-lenders Act, and Section 13 in terms directs that in fixing the instalments the Court must have regard to the circumstances of the judgment-debtor and to the amount of the decree. There is nothing in the order to indicate what are the circumstances of the judgment-debtor and whether he can pay these instalments. It is true that the decree is not a large one, but the amount of the instalments must be governed not only by the amount of the decree but by the circumstances of the judgment-debtor or in other words his capacity to pay. The judgment-debtor invariably, underrates his capacity to pay, and in this case had offered quarterly instalments of Rs. 25. 1 It is a matter entirely for the Court below to decide whether instalments should be granted, and, if so, the amount of such instalments, but when the amount of instalments is fixed, the Court must make it clear that the amount is fixed having regard not only to the amount of the decree but the circumstances of the judgment-debtor. There is a danger in this case that the amount of instalments has been fixed somewhat arbitrarily, and that being so, the order must be set aside, and the learned Munsif must reconsider the matter in the light Of the observations which I have made.

I would urge all the Judges in the Courts below dealing with these applications to give their reasons for granting instalments and for granting instalments of any particular amount. Unless reasons are given it is quite impossible for this Court to come to any conclusion as to whether the learned Judge of a Court below directed himself properly in law when deciding such questions.

The result, therefore, is that I allow this application, set aside the order of the Court below and remand the ease to that Court to be heard and determined in the light of the observations which I have made. The petitioners are entitled to their costs in this Court, and I assess the hearing-fee at one gold mohur.