091-NLR-NLR-V-33-BANK-OF-CHETTINAD-v.-PALMADAN-CHETTY.pdf
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AEBAB J.—Bank of Chettinad v. Palmadan Chetty.
1932Present; Akbar J. and Jayewardene A.J.BANK OF CHETTINAD v. PALMADAN CHETTY.
134—D. C. Colombo, 44,518.
Mtiigage decree—Entered in first instance—Application to vary terms ofdecree—Payment by instalments—Civil Procedure Code, s. 194,
Where a* mortgage decree orders that the defendant shall pay forth*with the 6um due and that, in default of payment, the premises mortgagedbe fold, the Court has no power to vary the order by making what is,in effect a decree for payment by instalments,
A decree for payment by instalments must be made in the first instance,ttucl) a decree cannot be entered in a mortgage action.
^^PPEAL from an order of the District Judge of Colombo.
H. V. Perera, for the plaintiff, appellant.
Weera8ooria (with him Nadarajah), for the defendant, respondent.
May 6, 1932. Akbar J.—
The point to be decided in this appeal seems to be a clear one and ofsome importance to practitioners. On June 8, 1981, the plaintiff-appellant .obtained an ordinary mortgage decree, the 1st clause of which orderedthe defendant to pay forthwith to the plaintiff a sum of Rs. 65,371.50,together with interest at 9 per cent, from the date thereof till paymentin full, and costs of the action; the 2nd clause declared that the premisesand property described in the schedule to the decree were to be bound'and executable for the payment of this sum; and the 3rd clause statedthat in default of payment of this sum “ forthwith as aforesaid the saidpremises and property declared specially bound and executable asaforesaid ” be sold subject to a certain mortgage. On June 9, the very-next day, the defendant-respondent filed a petition in which, afteralleging that the action of the plaintiff in trying to sell the property-hypothecated would mean ruin to him and his credit would be completelygone, he asked that the execution proceedings be stayed and that he begiven 18 months* time to pay the plaintiff his claim. The matter cameup for inquiry before the District Judge and in spite of objection takenby plaintiff’s counsel, evidence was heard and he made an order datedJuly 3, 3931, whereby he allowed the application in these terms: —the execution proceedings were to be stayed upon condition that thedefendant paid the plaintiff or deposited in court a sum of Rs. 20,000*within two weeks from that date; secondly, the oil and other producelying in the premises (which had already been ordered to be sold bythe mortgage decree) were not to be sold or disposed of by the defendantsave for the purpose of paying the aforesaid amount of Rs. 20,000;and then a further third condition that the defendant do pay into Courton the first day of each month, commencing on August 1, a sum of Rs. 1,000and at the expiration of 18 months thereafter the full amount of the
AKBAR J.—Bank of Ghettinad v. Palmadan Ghetty.359
'balance due under the decree. If the defendant was to commit a defaultin the fulfilment of any of the conditions the plaintiff was to be declared•entitled to apply for and obtain an order to sell forthwith.
Mr. Weerasooria contended that the District Judge had the powerto make this order under section 843 and section 344 of the Civil Pro-cedure Code. He cited certain cases in which the Supreme Court hasheld that section 343 could be invoked even by a mortgagor to stayproceedings under a decree ordered under section 201 of the Civil Pro-cedure Code because section 343. was of general, application. The casescited were Penes v. Somasunderam Chetty 1 and Lucyhamy v. de Alwis 2,but those cases, it will be seen, did not contain the element which hasgiven all the trouble in this case, namely, that there was no variationof the decree in those cases. In this case, in my opinion, the order madeby the District Judge on July 3, 1931, was a direct variation of the decreewhich had already been entered on June 8, 1931. One has only toplace the two orders side by side to see how entirely inconsistent, theyareone with the other.Themortgagedecree of June 8, 1931, orders
thepayment forthwith ofthefull sumand irf default of payment the
•whole property was to be sold at once. By the order of July 3 the effectof this decree is entirely stopped and the direction of the carrying outof the execution proceedings is left virtually in the hands of the defendants, ./theonly condition beingthepayment of Bs. 20,000 within 2 weeks,
andhe was left with thesolediscretionof selling all the oil and other
produce lying in the premises for the purpose of paying this sum ofBs. 20,000. Further, even though the defendant did not ask to be allowedto pay ’.by instalments, the District Judge in effect ordered the defendantto pay by instalments Bs. 1,000 per month and the balance was to bepaid at the end of 18 months. I think it is idle to contend that this is not£ variation of the original decree.
There is one other point which I should like to mention in this connec-tion, and that is that under section 194 the Court is given the power to•order the payment of money by instalments, but it is quite clear fromchapter XX. of the Code and the cases of Supramaniam v. Perumal 3 and•Carpen v. Nallan 4 that such an instalment decree must be entered in thefirst instance; it eannot be entered as a variation of a decree alreadyentered. Further, section 194 specifically excludes all money due onmortgages of movable or immovable property from this power givento the Court to enter such instalment decrees. So that the appellanthas succeeded in getting an instalment decree which was prohibitedto him under section 194 by allowing a mortgage decree to be enteredin the first instance and then by asking for a stay of proceedings undersection 343.
Mr. Weerasooria rather hesitatingly pointed to section 344 as alsobeing a section under which he could claim to come in. I need onlymention in this connection judgment pointed out to me by my brotherJayawardene, namely, the case of Allis Appii v.- Ban Menika 5 in which
2 Times of Ceylon Law Reports 189.3 1 N. L. R. 371.
2 Times of Ceylon Law Reports 145.4 2 C. L. R. 111.
5 Times of Ceylon Law Reports ll
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A KB AH J.i—Bank of Chettinad c, Palmadan Chelty.
my brother Garvin sajd that section 844 of the Civil Procedure Coderelated to the execution of decrees and enabled a court to dispose ofquestions relating to the execution which arose between the partiesinstead of referring them to a separate action, and that it did not confera special power on the Court to set aside its own decree.
I think I have said enough to show that the order made by the DistrictJudge allowing the defendant’s application was clearly wrong and thatit should be set aside.
Owing to this order and owing to tLis appeal, the respondent haspractically got the full benefit of the order made in his favour.
T set aside the order and allow the appeal, with costs in both courts.
Jayewardene A.J.—I agree.
Appeal allowed..