DE SILVA A.J.—Imperial Bank of India, Ltd. v. Silva.
1933Present: Akbar J. and de Silva A.J.
IMPERIAL BANK OF INDIA, LTD. v. SILVA et al.
201—D. D. (Inty.) Colombo, 48,903
Mortgage decree—Order for payment by instalments—Civil Procedure Code,s. 194—Ordinance No. 22 of 1927, s. 12.
I». a mortgage action the Court has power to order the payment, byinstalments, of the money due under the decree.
A PPEAL from an order of the District Judge of Colombo.
L. A. Rajapakse, for defendants-appellants.
N. E. Weerasooria, for plaintiff-respondent.
May 31, 1933. De Sllva A.J.—
The plaintiff in this case sued the defendants for the recovery of thebalance sum of Rs. 72,182.94 due on a mortgage bond excuted on;February 18, 1931, for a sum of Rs. 79,431.53. It appears from theevidence of the second defendant, which has not. been challenged, thatthe loan was originally given without security and that later, when calledupon, the defendants furnished the security now sued upon, and alsohanded to the plaintiff a number of promissory notes in their favour.They have also assigned a mortgage bond. It appears both from theevidence and from the findings of the learned Judge that the defendantshave acted entirely honesty and made every endeavour to pay off theclaim of the plaintiff as expeditiously as possible. They asked for timeto pay the amounts sued upon, the learned Judge has given them timeand made order that for a period of one year from October 15, 1932,the defendants should pay the sum of Rs. 1,000 a month. During thesecond year that they should pay the sum of Rs. 2,000 per month andduring the third year they should pay Rs. 3,000 a month. He was ofopinion that the security which the bank held was adequate, and I haveno reason to doubt the correctness of this view.
DE SILVA A.J.—Imperial Bank of India, Ltd. v. Silva.
The defendants on this appeal ask that the order be altered in theirfavour and that a reduction be made in the amounts which they havebeen ordered to pay. They urge that although they have endeavoured,and still continue to endeavour, to pay off the claim of the plaintiffs asquickly as possible, the sums of Rs. 2,000 and Rs. 3,000 a month whichthey have been ordered to pay are more than they can meet and thatthe effect of the order would in all probability be to place the landsmortgaged upon the market for sale in execution.
The plaintiffs have filed a cross appeal on which they urge that theyare entitled to immediate execution in law and that the order of thelearned District Judge is bad. Two points arise for decision in this case,the first a point of law whether it is competent for a Court to enter anorder for payment by instalments on an action on a mortgage bond andthe second whether, if such a power exists, the order under considerationis proper in the circumstances of this case.
It has been assumed in certain decisions that a Court has no power toenter a decree for instalments on an action on a mortgage bond, butcounsel for the plaintiff has not been able to point out, and I have beenunable to discover, any case in which the question has been considered.Section 194 of Chapter XX, of the Civil Procedure Code says “ In alldecrees for the payment of money, except money due on mortgage ofmovable or immovable property, the Court may order that the amountdecreed to be due shall be paid by instalments with or without interest,and the Court may in its discretion impose such terms as it may thinkfit as to giving security for the payments so to be made ”. Differentsections of. Chapter XX, deal with different kinds of decrees and givedirections as to the nature of the provision they sire to make. Section 194relates to all decrees for the payment of money, except for the paymentof money due on mortgages. Section 201, which has since been repealed,dealt with decrees for the payment of money due on mortgages. Thewords w except money due on mortgage ” in section 194 were intendedin my opinion to confine the scope of the section and to exclude mortgagedecrees from its operation. This is the plain meaning of the wordsand I cannot find in section 194 or in any other section a prohibitionagainst the entering of an instalment decree on a mortgage action. Toascertain the powers of a Court with regard to mortgage decrees onehad to turn to section 201 and there was nothing in section 201 inconsistentwith the entering of an instalment decree. It was clear that the Courtcould have given time to pay, and it is unreasonable that the Courtshould not have had the power to have given time on condition thatmoney was paid by instalments at stated intervals. In the absence of aprovision of law which prohibits the ordering of instalments I thinkit was competent to a Court under section 201 to have made such order.Section 201 has been repealed by section 19 of Ordinance No. 22 of1927 and section 12 of this last-named Ordinance provides that in amortgage decree the Court shall order that in default of payment of themortgage money within a period mentioned in the decree the mortgageproperty shall be sold. It is competent to a Court therefore to prescribea period and thereby^to give time for the payment of the amount due
Terunnanse v. Don Aron.
on a mortgage. I see nothing in the existing law which prevents aCourt from fixing the period conditionally, the payment of instalmentsbeing made the condition for granting time. I think this is both reason-able and in accordance with the law. I think therefore that the pointof law must be answered in favour of the defendants.
The next question which arises is v’whether the amounts ordered to bepaid by the learned District Judge should be left as they are or whetherthey should be altered. It appears from the affidavit filed by thedefendants that on actions filed by them against their debtors, the latterhave been given time to pay' by the District Court of Negombo. Italso appears that in respect of the notes handed by them to the plaintiffas security there is every possibility of recovering the amounts due,but that if sudden pressure were brought to bear the chances of recoverywould be prejudiced by reason of the fact that the makers might fail inbusiness. It also appears that the original debt was reduced by aconsiderable amount at the date of the institution of the action and thatif the defendants have complied with the order of the learned DistrictJudge the amount would have been still further reduced by now. Thepossibility of the security depreciating below the amount now due to theplaintiffs is remote, and I do not think that the giving of time to thedefendants would place upon the plaintiff a risk which he should not becalled upon to bear. The circumstances of the defendants have beenfully explored in the lower Court and on a consideration of the evidencethere led I am of opinion that the order of the learned District Judgeshould stand, subject to the variation that from October 1, 1933, theyshould pay a sum of Rs. 1,500 per month (and not Rs. 2,000 per monthas ordered by the District Judge) and from October 1, 1934, a sum ofRs. 2,500 a month (and not Rs. 3,000 a month as ordered by the DistrictJudge) and that if such payments are. made writ for the balance shouldnot issue till October 1, 1935. The decree should also be altered to makeit perfectly clear that the words “ highest bidder ” in the phrase “ thenimmediately thereafter to the highest bidder ” mean the highest bidderat a sale subject to no reservation as to price held independently of thetwo earlier sales referred to. Subject to these variations the decisionappealed from is affirmed. I do not think that there should be anycosts of this appeal.
Akbar J.—I agree.
IMPERIAL BANK OF INDIA, LTD. v. SILVA et al