096-NLR-NLR-V-36-RAMANATHAN-CHETTIAR-v.-IBRAHIM-et-al.pdf
AKBAR J.—Ramanafhan Chettiar v. Ibrahim.
445
1935Present: Akbar and Koch JJ.
RAMANATHAN CHETTIAR v. IBRAHIM et at.
178—D. C. Matara, 7,820.
Mortgage action—-Decree entered in favour of plaintiff—No provision in decreeas to time of payment of money decreed—Application by plaintiff fororder to sell—Defendant’s application to pay by instalments—Powers ofCourt—Ordinance No. 21 of 1927, s. 12.
In a mortgage action the Court, in. entering judgment in favour of theplaintiff for the money due on the bond, has power to fix the periodwithin which the money is to be paid or order such payment to be madeby instalments.
Under section 12 of the Mortgage Ordinance the Court has power, evensubsequent to the decree, in giving directions for the sale to fix the periodwithin which the money should be paid, so long as it does not alter orvary the original decree in that respect.
^^PPEAL from an order of the District Judge of Matara.
N. E. Weerasooria, for plaintiff, appellant.
No appearance for respondent.
April 1,1935. Akbar J.—
This is an appeal by the plaintiff in a mortgage action in which decreehas been entered of consent and on which a part of the money due on thebond has been paid, against the order of the District Judge who allowedthe defendant nine months’ time to pay the balance amount due. Thedecree which was signed on February 2, 1933, merely states that thedefendant is to pay the sums of money due on the bond with interest andfurther interest on the principal sum from a certain date until payment infull and costs. Then there is a further direction that in default of paymentof this amount, interest and costs, “ within such time ” the premisesmortgaged by the bond should be sold by a certain auctioneer and theproceeds applied towards the payment of the amount, interest and costs.The decree did not state, it is to be observed, in the first place the periodof time during which the money was to be paid nor did it give directionsas to the conduct and conditions of the sale.
446AKBAR J.—Ramanathan Chettiar v. Ibrahim.
In the original application that the defendant-appellant made for timeto pay the b&laiace amount he really asked for the privilege of paying byinstalments. This, the Judge refused, because it would be a variation ofthe terms of the decree itself inasmuch as the decree ordered the paymentof the full sum and not by instalments.
After refusing the application for payment by instalments he went onto give the defendant nine months' time to pay the balance amount due.The question arises whether the District Judge had the power to give^this time in the manner in which he has done in this case. There aretwo decisions of this Court which have some bearing on this question.The first case is the Bank of Chettinad v. Palmadan Chetty The secondcase is the Imperial Bank of India Ltd. v. Silva and others
In the first case the effect of the judgment was that where a mortgagedecree orders that the defendant shall pay forthwith the sum due and thatin default of payment the premises mortgaged be sold, the Court has nopower to vary the order subsequently by allowing the defendant theprivilege of paying the money by instalments. In the second case theretoo it was a mortgage action and before the decree was passed the defend-ant asked for the concession of paying the mortgage debt by instalments,which concession was allowed by the District Judge and entered in theoriginal decree. The defendant then appealed to this Court asking for areduction of the amounts ordered to be paid by way of instalments andthere was a cross appeal by the plaintiff, in which he asked for immediateexecution in law and the contention was put forward that the District■Judge had no power to allow the mortgage debt to be paid by instalmentsin a mortgage action.
The Supreme Court considered the effect of section 12 of the MortgageOrdinance, No. 21 of 1927, and the old section 201 of the Civil Procedure’Code, and came to the conclusion that in a mortgage action the Courthad- the power to order the payment by instalments of the money dueunder a decree. I see no reason to disagree with both these judgments.But in section 12 of the Mortgage Ordinance of 1927 it is stated that ina hypothecary action, where it is found that the mortgage ought to beienforced, the decree shall order that, in default of payment of the mort-gage money within the period mentioned in the decree, the mortgagedproperty shall be sold, and the Court may, if it thinks fit, in the decree orsubsequently give such directions as to the conduct and conditions of thesale and the person to conduct the sale, &c.
The Supreme Court in the second case held that as it was within thepower of the Court to fix the period within which the money was to bepaid, it had also the power to order the payment of the money in whateverway it liked, even by instalments.
The first case held that where the decree specifically stated that themoney was to be paid forthwith or within a definite period, it could not bevaried afterwards so as to affect this period within which the money wasto be paid. Under section 12, even subsequent to the decree the Court•can give directions as to the conduct and conditions of the sale. Butthese conditions of sale must be with reference to the original decree and
1 38 N. L. n. 3.7.?:
a 3i .V. L. J?. !}S£,
Fernando v. Ismail.
447
they must not have the effect of altering or contradicting or varying theperiod fixed by the Court, in the original decree itself. That is how Iinterpret section 12 and the effect of the two judgments.
In this case the decree unfortunately did not fix the period withinwhich the money was to be paid nor did it state after what period theproperty was to be sold. All these are conditions which the Court couldimpose under section 12 of Ordinance No. 21 of 1927 in respect of anyapplication made by the mortgagee to execute his decree. So that theCourt had the power when specifying the conditions of sale to fix theperiod after which the property was to be sold.
Unfortunately the District Judge had not these fine points before himin his mind when he made his order on the application to pay money byinstalments which he rightly refused; but without considering the pointsmentioned by me his order merely gave the defendant nine months' timeto pay.
The application was by the plaintiff to issue a commission to theauctioneer named in the decree to sell the property. The proper coursethe District Judge should have followed would have been to fix theconditions under which the sale was to be carried out, and in those-conditions to fix the period within which the balance was to be paid.
The appeal should therefore be allowed in order that the Judge may onthe application of the plaintiff fix those conditions under which the sale-is to be carried out and incidentally fix a period after which the sale isto be carried out.
I should like the District Judge to keep specifically in mind the fact thatthe order allowing nine months’ time was made so far back as September19, 1934, and a good part of that time has been consumed whilst this casewas in appeal. In fixing the new period in the conditions of sale afterwhich the sale is to be carried out, the District Judge should keep in mindthe fact that the whole of the nine months or at any rate a portion of thenine months has already elapsed.
The order is set aside and the case sent back for the purpose indicatedbut I will make no order as to costs.
Koch J.—I agree.
Set aside.