Bombay High Court
The State Of Bombay vs L.D. Narayanpure And Ors. on 27 July, 1959
Equivalent citations: AIR 1960 BOMBAY 334, ILR (1960) BOM 48 61 BOM LR 1591, 61 BOM LR 1591
JUDGMENT Tarkunde, J.
(1) This reference has been made by the Taxling Officer under s. 5 of the Court-Fees Act, and the learned Chief Justice has directed us to decide the question so raised. The question relates to the Court-fees chargeable on four appeals, each arising from an order passed under s. 24 of the Bombay Money-lenders Act, 1946. In three of the four cases, applications filed by judgment-debtors under S. 24 of the Act for making the decretal amounts payable by instalments were rejected by the Courts below. In the forthe case,the application of the judgment-debtor was partally granted and the judgment-debtor has come in appeal on the ground that the relief granted to him was inadequate. The Taxing Officer was of the view that no appeal could be filed from a decision under s. 24 of the Bombay Money-lenders Act and that the appellants in the four appeals may, if they so desired, convert the appeals into civil revision applications and that Court-fees may then be levied on that basis. the Taxing Officer, however, felt that the question involved was of generalimportance and hence he made this reference.
(2) The question aised by the Taxing Officer is not free from difficulrty. Section 24 of the Bombay Money-lenders Act, 1946, is in the following terms:
"Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court may, at any time, on application of a judgment-debtor, after notice to the decree-holder, direct that the amount of any decree passed against him, whether before or after the date on which this Act comes into force, in respect of a loan, shall be aid in such mnumber of instalments and subject to such conditions, and payable on such dates, as having regard to the circumstances of the jedgment-debtor and the amount of the decree, it considers fit".
The Bombay Money-lenders Act does not provide any appeal from an order granting or rejecting an application under S. 24. If the order is one not amounting to a decree, it is obviously not appealale, as it is not covered by S. 104 and Order 43 of the Code of Civil Procedure. an appeal from the order can be maintaine only if the order is a "decree" as defined by S. 2(2) of the Code. that definition is in two parts. The first part defines "decree" as "the formal expression of an adjudication which so far as regards the Court Expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be ether preliminary or final". The second part of the definition includes in the term "decree" orders which any otherwise not be decrees. This part, so far as it is material, says that the term "decree" "shall be deemed to include ......the determination of any question within S. 47 ....... An order under S. 24 of the Bombay Mony-lenders Act can be held to be a decree either if it determines a question relating to the execution, dischargeor satisfaction of a decree under s. 47 of the Code, or if it comes within the first part of the definition of the word "decree". On behalf on the appellants in the four appeals, Mr. Paranjape and Mr. Adik urged that an order under S. 24 of the Bombay Money-lendes Act is a determination of a question within S. 47 of the Code and, alternatively, that it amounts to a decree according to the first part of the definition of that term.
(3) We will deal first with the First of these alternative arguments. The Taxing Officer was of the view that a judgment-debtor seeking a direction under S. 24 of the Bombay Money-lenders Act eeks in effect a partial modification of the decree passed against him, and that therefore an order passed by the Court either allowing or rejecting him application cannot be regarded as an order relating to the execution, discharge or satisfaction of that decree. This view of the Taxing Officer assumes what undoubtedly is the general rule, namely, that an executing Court will execute a decree as it is, without any modification or qualification. Nothing, however, prevents the Legislature from modifying or qualifying the rights of decree-holders in executing the decrees passed in their favour. If the Legislature passes an enactment which limits the decretal rights of a decree-holder, the executing Court is bound to execute the decree subject to the limitations so placed by the Legislature. the Legislature may prevent decres from being executed against certain classes of property (e.g. section 10, Bombay Hereditary Offices Act, 1874); it may provide that no process shall be issued against certain classes of judgment-debtors for a specified period (e.g. The Bombay Small Holders Relief Act, 1938). Instances of legislation of this type are not few. An executing Court is required to execute the decree in accordance with the prevailing law, and an order passed by the executing Court on whether the decree under execution is limited or otherwise qualified by a legislative enactment does not cease on that account to be an order under S. 47 of the Code. It was argued before uuus by Mr. Paranjape that an order which is passed by the Court under S. 24 is an order of this nature. the Legislature, according to him, provided qualification to the rights of the decree-holder in the case of decrees passed on loans, and it is well within the function of the executing Court to decide whether the qualification imposed by the Legislature was available in fvour of a particular judgment -debtor. We might have accepted this argument if S. 24 of the Bombay Money-lenders Act were merely declaratory of the rights of judgment-debtors in the execution of decrees to which that section applies. In that case it would have been the duty of an exeuting Court to consider the rights of the judgment-debtor so declared by the Legislature and to execute the decree accordingly. The wording of Section 24, however, shows that it is not merely declaratory. It empowers the Court to "direct that the amount of any decree......shll be paid in such number of instalments and subject to such conditions and payable on suh dates, as......it considers fit". Section 24 enables the Court to give a direcrton, and the direction so given may itself be executable. It must, therefore, follow that the Court, while exercising the powers under S. 24, does not merely consider te prevailing law as it applies to the execution of decrees already passed, but decides whether positive directions should be given in partial supersession of the terms of decrees previously passed. Such an order cannot, therefore, be regarded as a determination of a question within S. 47 of the Code of Civil Procedure.
(4) Turning next to the sencond alternative argumen, an order under s. 24 of the Bombay Money-lenders Act would be a decree according to the definition of the term "decree" in the first part of S. 2(2) of the Code, if it amounts to an adjudication of "the rights of the parties with regard to all or any of the matters in controversy in the suit". The definition makes it clear that the adjudication need not be off all the matters in controversy in the suit in order that it may be a decree. Now, in a suit based on a "loan" as defined by the Bombay Money-lenders Act, one of the matters in controversy between the parties is the time before which and the manner in which the amount which may be found due to the plaintiff shall be paid by the defendant. An order under S. 24 is an adjudication which determines this matter in controversy between the parties to the sui. It is true that an application under S. 24 is necessarily filed after a decree in such a suit has already been passed by the Court, and as a rule the decree provides, expressly or by implication, the time within which the judgment-debtor must satisfy it. There is, however, no difficulty in treating an application susequently filed by the judgment-debtor under S. 24 of the Bombay Money-lenders Act as an application filed in the suit itself. this is because the finality of the original decree, in so far as the decree relates to the time of payment of the decretal amount is qualified by the Legislature and made dependent on an order which may subequently be passed by the Court under S. 24. In this connection, it would be legitimate to compae an order under s. 24 of the Bombay Money-lenders Act with an orderon an application of the decree-holder for ascertainment of mense profits filed after the passing of a decree under Order XX, Rule 12, of the Code. The application of the decree-holder, in the latter case is regarded as an application in the suit, and the order of the Court awarding a specfic amount of mesne profits to the decree-holder, s deemed to be a decree and is appealable as such. The only substantial difference between such an order and an order under s. 24 of the Bombay Money-lenders Act is that, whereas a direction for the ascertainment of mesne profits is contained n the very decree passed under Order XX, Rule 12, a direction for determining the time of payment is given by the Legislature in S. 24 of the Bombay Money-lenders Act. We do not think that this difference can justify the view that an order under S. 24 is any-the-less a decree than an order awarding a specific amount of mesneprofits made after a decree passed under Order XX, Rule 12.
(5) It may be added that, in our view, an order under S. 24 of the Bombay Money-lenders Act is a decree even if it is an order rejecting the application, so that the order leaves the original decree unaffected. this is because, in our view, an application under S. 24 is not an applicatio for the amendment of the original decree. The application seeks a fresh decision of the Court on the in S. 24 of the Bombay Money-lenders Act. We do not think that this difference can justify the view that an order under S. 24 is any-the-less a decree than an order awarding a specific amount of mesneprofits made after a decree passed under Order XX, Rule 12.
(6) It may be added that, in our view, an order under S. 24 of the Bombay Money-lenders Act is a decree even if it is an order rejecting the application, so that the order leaves the original decree unaffected. this is because, in our view, an application under S. 24 is not an applicatio for the amendment of the original decree. The application seeks a fresh decision of the Court on the question whether the decretal amount should or should not be made payable by instalments and whether its payment should be subject to any conditions. Being a fresh decision on one of the matters in controversy in the suit, the order is appealable whether the application is rejected or allowed.
(7) None of the cases cited before us deals directly with the question which we have to decide. In Zaverchand Panaji v. Mayadevi, 58 Bom LR 619, Bavdekar J. held that an order under s. 24 of the Bombay Money-lenders Act can be made only by the Court which passed the decree and not by the Court to which the decree is transferred for execution. This decision does not necessarily support the conclusion, to which we have reached on other grounds, that such an order is not a determination of a question under S. 47 of the Code. This is because, even in matters which clearly relate to the execution, discharge and satisfaction of a decree, some orders can be made only by the Court which passed the decree and not by a Court to which the decree is transferred for execution. A similar decision was given by a Full Bench of the Nagpur High Court in Bilimoria v. Central Bank of India Ltd., Bombay, ILR (1944) Nag 1 : AIR 1943 Nag 340 F. B. That case arose under S. 11 of the Central Provinces Money-lenders Act, which is in pari materia with S. 24 of the Bombay Money-lenders Act. The Full Bench held that the word "Court" used in S. 1 of the Central Provinces Act refers to the Court which passed the decree, and not to the Court to which the decree is transferred for execution. It may be noted that S. 11 of the said Act specifically provides that an order passed thereunder "shall be deemed to have been passed under s. 47 of the Code of Civil Procedure".
(8) In Pramode Nath v. Raseshwari Dassi, a Division Bench of the Calcutta High Court held that an order under s. 36 sub-section (6) of the Bengal Money-lenders Act, 1940, either granting or refusing a prayer for reopening a decee, does not come under s. 47 of the Code of Civil Procedure and is not appealable as such. It was unfortunately not possible for us to see the provisions of the Bengal Act, and particularly the wording of S. 36 thereof. It appears from the judgment in the above case, however, that S. 36 of the Bengal Act is materially different from S. 24 of the Bombay Act. Section 36 of the Bengai Act apparently provides for the formal reopening of a former decree and the passing of a new decree. The Division Bench held that, it an application under S. 36 of the Bengal Act results ;in the passing of a new decree, an appeal lies from the new decree, but that no appel lies directly from the order passed on the application under s. 36. The judgment shows that the only argument which was advanced before the Court in favour of the appealability o an order under S. 36 was that the order determines a question relating to the execution, discharge or satisfaction of a decree within S. 47 of the Code. The Court did not consider the question whether such an order determines the rights of the parties with regard to matter in controversy in the suit itself and is a decree within the first part of the drfinition of that term in S. 2(2) of the Code.
(9) The decision in Dhanukdhari Singh v. Ramratan Singh, ILR 19 Pat 862 : AIR 1941 Pat 1 proceeds on a differnet basis. The case arose under S. 11 of the Bihar Money-lenders (Regulation of Transactions) Act, 1939, which it appears empowers an executing Court to grant instalments for the payment of amounts previously decreed. A Division Bench of the Patna High Court held in that case that an order under s. 11 of the Bihar Act is not a decree within S. 47 read with S. 2(2) of the code of Civil Procedure, and is not, therefore, appealable. The learned Judges observed that ever order passed in the course of execution proceedings is not necessarily a decree so as to be appealable, and that, in order to be a decree, it must in some way finally determine the rights of the parties with regard to all or ;any of the matters in controversy. The main judgment delivered in the case then went on to say:
"......The right of the decree-holder to be paid the decretal amount and the iability of the judgment-debtor are determined by the decree in the suit. The power conferred on the executing Court by section 11 of the Money-lenders Act is a discretion which the Court may excercise in derogation of the rihts of the decree-holder to execute the whole of his decree immediately against the judgment-debtor. In deciding whether it shall or shall not exercise the discretion conferred upon it by this section the Court is not determining any question of the parties' rights. but merely whether n indulgence shall be shown to the judgment-debtor for the purpose of enabling him to meet the just demands of the sdecree-holder and at the same time avoid the forced sale of his own properties." On this view, an order graning or refusingto grant instalments would not be appealable as a decree, because it would not be covered by either of the two arts of the definition of "decree" in section 2(2) of the Code of Civil Procedure. With great respect, we do not agree with the view which appears to be implicit in the passage quoted above, that decision given by the Court in the exercise of its discretion does not amount to a final determinationof the rights of the partes with regard to a mater in controversy in the suit. If the time within which the plaintiff's dues shall be paid by the defendant is one of the matters in controversy between the prties to the suit, the fact that the Court exercises a discretion in deciding that question will not prevent the decision from being a ddecree. In a suit for specific performance, for instance, the decision of the Court is given in the exercise of its discretion, but the decision is a decree nonetheless.
(10) A referenc may next be made to certain decisions relating to the appealability of orders passed under Order 20, rule 11(2), of the Code of Civil Procedure. Order 20, rule 11(2), provides that, after the passing of a money decree, the Court may, on the application of the judgment-debtor and with the consent of the decree-holder, it would normally be not appealable. The rule, however, was amended by the Rangoon and Nagpur High Courts so that an order thereunder could be passed after hearing the parties, but without the consent of the decree-holder. It will be noticed that Order 20, rule 11(2), so amended, is very similar to, though more restricted than, section 24 of the Bombay Money-lenders Act. In Saya Hattie v. Ma Pwa Sa, ILR 4 Rang 247 : AIR 1926 Rang 192 a Judge of the Rangoon High Court, sitting singly, held that an order under the above amended provision was one relating to the execution, discharge or satisfation of a decree and was, therefore, appelable as a decree. While w agree, with great respect, that such an order is a decree and is appealable, we do not think that it determines a question relating to the execuation, discharge or satisfaction of the original decree. The above decision was followed in several subsequent decisions of the Rngoon High Court. In Shree Jagruteshwar Deosthan v. Atmaram, ILR (1943) Nag 456 : AIR 1943 Nag 155, Bose J., sitting singly, held that an order under the above amended provision, grtanting or refusing to grant instalments for the payment of the decretal amount, is appealable. The learned Judge observed: "It seems to me that whether the order be regarded as one under section 47 or as a decreein itself because it affects the decree, it must be appealable." With great respect, we agree with the second alternative mentioned in this observation.
(11) We, therefore, hold that an order under section 24 of the Bombay Money-lenders Act, granting or refusing to grant instalemtns for the payment of the amount decreed, is appealable as a decree. The proper Court-fee mentioned in Schedule II, item 17(vii), of the Court-fees Act, as amended in the Bombay State. The subjet-matter in dispute in such an appeal is not the amount of the decree, but the mode in which the amount is to be paid. As such, it is not possible to estimate at a money value the subject-matter in dispute. A similar view on the Court-fee payable in such cases was taken in Sitabai v. R. S. R. R. Abhyankar, ILR 1938 Nag 423 : AIR 1938 Nag 409 (FB).
(12) Our decision on the reference, therefore, is that the Court-fee to be charged on the memoranda of appeal in the four appeals will be Rs. 18-12-0 each, as provided in Schedule II, item 17(vii), of the Court-fees Act.
(13) Reference answored accordingly.