Mrs. FARIDA HANIF MOTIWALA vs QAIS MANSOOR SHEIKH

ORDER

1. ' This application under section 151, C.P.C. Has been made by the judgment-debtor with a prayer that he may be allowed to pay off the decretal amount, in instalments of Rs,35,000 per month or such instalments as the Court may fix. The decree was passed on 6-12-1999 against the defendant/judgment-debtor for a sum of Rs,30,00,000 with 6% interest from 7-6-1997. The decree- holder filed the instant execution application, claiming a total amount of Rs,34,68,264 inclusive of interest up to 14-1-2000. Notice of this application was served on the judgment-debtor and the counsel for judgment-debtor appeared on 6-3-2000. He was directed to furnish bank guarantee in the sum of decretal amount within 14 days but the guarantee has not been furnished till this day. It has been pointed out to the learned counsel for judgment-debtor that under Order XX, Rule 11(2), C.P.C. Payment of decretal amount can be allowed to be made in instalments only with the consent of the decree-holder. Aforesaid sub-rule prescribes as under:-- "11(2). After passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit."

2. Learned counsel for decree-holder is present with decree-holt'er and they do not concede to grant of payment by instalments. It is well-settled that a decree-holder cannot be compelled by the Court to accept payment of amount decreed, in instalments. The power under section 151, C.P.C.

3. Cannot be exercised in favour of judgment-debtor by overlooking the express provision of law. On this point Mehar Sultan Jung v. Qurban Hussain 1972 SCM R 73 may be quoted with advantage.

4. Consequently, the application is dismissed.

2. As regards the mode of execution of the decree, learned counsel for decree-holder submitted that the only mode opted by him is the course of action under Order XXI, Rule 37, C.P.C. For arrest of the judgment-debtor. In this regard it may be clarified that mere arrest of judgment-debtor would not be the only effective mode, detention in prison is likely to follow, therefore, entire procedure prescribed under proviso to section 51 read with Order XXI, Rules 37, 38 and 40, C.P.C. Is to be followed. It needs to be emphasized that mere notice of the execution application would not satisfy the requirements of a show-cause notice contemplated under Rule 37(1) of Order XXI, C.P.C., the judgment-debtor shall expressly be called upon to show cause why he should not be committed to civil prison. No doubt in the first instance notice was issued to the judgment-debtor for his appearance, but the copy of notice available in Court file shows that there was no mention that he was being called upon to show cause why he should not be detained in prison. The judgment- debtor has put in appearance through his Advocate. Rule 40 of Order XXI, C.P.C. Also makes a provision that a judgment-debtor on his appearance is to be afforded an opportunity to show cause why he should not be committed to prison. Learned counsel for judgment-debtor is present.

5. He is put on notice that the judgment-debtor by the next date of hearing shall explain as to why he (judgment-debtor) be not arrested and committed to prison.