Balkrishna Indrabhau vs Abaji Bin Bahirji More on 2 June, 1887

Bombay High Court
Balkrishna Indrabhau vs Abaji Bin Bahirji More on 2 June, 1887
Equivalent citations: (1888) ILR 12 Bom 326
Author: West
Bench: West, Birdwood


West, J.

1. In the present case the Court in decreeing payment of a debt secured on immoveable property granted to the judgment-debtor the indulgence of paying by annual instalments. Afterwards in the course of the proceedings in execution and after a default had been made whereby the whole sum decreed had become due, the judgment-debtor sought a new order for instalments. The Subordinate Judge in the Court of first instance refused it, but the Subordinate Judge in appeal has allowed it. The latter order cannot be sustained.

2. Section 15B of the Dekkhan Agriculturists’ Relief Act XXII of 1882 allows the Court to order payment by instalments either in its decree or in the course of the execution, but it does not authorise a variation of any order once so made. If this could be done, the decree would be subject to indefinite variation. It has been contended before us that such variation, in order to adapt execution to the means of the debtor, is a necessary corollary from the terms of the section; but however logical the deduction might be, the Legislature has not thought fit to draw it. Section 20 of Act XVII of 1879 provides for instalment orders in ordinary cases, but it has not been held that it authorises a series of instalment orders each one varying from the preceding.

3. The instalments directed by the Subordinate Judge in his varying order were paid into Court by the judgment-debtor. He had even paid in some instalments, it is said, before the order was made. The judgment creditor took these moneys out, and it is urged that he thereby bound himself to abide by the second instalment order. But the whole amount of the decree having become due to the creditor on the first default, he was quite justified in taking all that was placed at his disposal towards the discharge of the debt due to him. No condition was annexed to the tender or lodgment of the sums in Court; they were paid in and were taken out simply subject to the rights and duties of the parties as they might subsist. The judgment-debtor could not, by merely complying with or anticipating a wrong order, convert it into a right one or take advantage of it as such, and the judgment-creditor did not, by taking part of what was due to him as he could get it, forfeit or postpone his right to the residue.

4. We therefore reverse the decree in appeal and restore that of the Court of first instance with all costs on the respondent.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes:

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>

* Copy This Password *

* Type Or Paste Password Here *