This revision petition challenged an order dismissing an application to pay a money decree by instalments due to lack of decree holder's consent. The Court held consent is not mandatory under amended O 20 R 11 CPC.
Order dismissed by lower court set aside; Lower Court directed to reconsider application afresh within four weeks.
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THE HON’BLE Ms. JUSTICE G. ROHINI
Civil Revision Petition No. 5004 of 2010
Dated: 16.03.2011
Between: Vemulapalli Narendra Babu, West Godavari District. … Petitioner And Mulpuri Satyanarayana, West Godavari District. … Respondent
THE HON'BLE MS JUSTICE G.ROHINI
Civil Revision Petition No. 5004 of 2010
O R D E R :
This revision petition is directed against the order dated 08.09.2010 in E.A.No.373 of 2010 in E.P.No.132 of 2008 in O.S.No.354 of 2004 on the file of Additional Senior Civil Judge, Eluru, West Godavari District.
The revision petitioner is the judgment debtor, who suffered a money decree dated 20.11.2007 for Rs.1,29,540/-. The respondent herein/plaintiff filed E.P.No.132 of 2008 and while the said petition is coming up for enquiry, the revision petitioner filed E.A.No.373 of 2010 under Order 20 Rule 11 of C.P.C. to permit him to pay the decretal amount in instalments. The said application was dismissed by order dated 08.09.2010 on the ground that as per Order 20, Rule 11 of C.P.C., no order can be passed granting instalment without the consent of the decree holder. Hence, this revision petition by the judgment debtor.
Heard the learned counsel for the petitioner as well as the respondent. Learned counsel for the revision petitioner while pointing out that as per Order 20 Rule 11 of C.P.C. as amended by the A.P. High Court, the consent of the decree holder is not mandatory vehemently contended that the order under revision is unsustainable.
Rule 11 of Order 20 as substituted by the High Court of A.P. reads as
under:
11. Decree may direct payment by instalments: (1) Where and in so far as decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that the payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which money is payable.
(2) After the passing of any such decree, the Court may, on the application of the judgment-debtor and after notice to the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him or otherwise, as it things fit.” (emphasis supplied)
On a reading of the above provision, it is clear that the Court has to consider the application made by the judgment debtor for payment of the decretal amount in instalments after notice to the decree holder and in appropriate cases, the judgment debtor can be permitted to pay the amount by instalments on such terms as to the payment of interest and etc.
Apparently, the Court below failed to exercise the discretion conferred under law and it was erroneously concluded that the application cannot be maintained since the decree holder did not consent for grant of instalments.
In the circumstances, the order under revision cannot be sustained. Accordingly, the same is hereby set aside and the revision petition is disposed of with a direction to the Court below to reconsider the E.A.No.373 of 2010 in the light of order 20 Rule 11 of C.P.C. as substituted by the High Court of A.P., and pass appropriate orders afresh after hearing both the parties as expeditiously as possible, preferably within a period of four weeks from the date of receipt of this order. No costs.
_______________ G. ROHINI, J
Date: 16.03.2011 KLP
1 issue framed by the court
Whether the consent of the decree holder is mandatory under amended Order 20 Rule 11 CPC for granting payment by instalments.
1 provisions across 1 enactments
Vemulapalli Narendra Babu
Mulpuri Satyanarayana
G. Rohini
As recorded by the court registry
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