Whether court can pass decree granting benefit of paying decretal amount in installments in mortgage suit?

By virtue of Rule 4 read with Rule 2 of Order 34 C.P.C., in passing a preliminary decree, the Court shall fix a period (and that period must be 6 months or less) within which the defendants shall pay the amount determined to the plaintiff. The decree should specifically refer to the time so granted and direct the defendant to pay the amount determined within such time and allow the plaintiff to apply for a final decree in case the amount is not paid within time fixed. Sub-rule (2) of Rule 4 enables the Court to extend the time for payment of the amount. In a case where the mortgage document does not allow the mortgagor to repay the "amount in instalments, the Court in passing decree under Rule 4 of Order 34, CPC can only grant to the defendant time not exceeding 6 months and cannot grant him the benefit of paying the amount in instalments. Payment in instalments is foreign to the scope of Rule 4 Order 34, CPC.

6. In this connection it may be relevant to notice that Sub-rule (1) of Rule 11 of Order 20, CPC reads thus -

Decree may direct payment by installments --(l)Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable."

The above provision enables the Court passing the decree to grant defendant benefit of paying decretal amount in instalments in the case of "decree for payment of money". It is argued a decree for recovery of money on mortgage can be regarded as decree for recovery of money. A decree under Order 34 Rule 4, CPC is not a decree for payment of money, but it is a decree for recovery of money by sale of mortgaged property. Such a decree has to be passed in conformity with the provisions of Order 34, CPC, and has to be regarded as a decree passed on a mortgage and not a decree for money simpliciter. Therefore, the provisions of Rule 11 of Order 20 , CPC cannot enable the Court to grant the benefit of instalments while passing a decree for enforcement of a mortgage. 

IN THE HIGH COURT OF GAUHATI

Civil Revision No. 351 of 1985

Decided On: 10.02.1992

 Sher Alam Vs.  United Bank of India

Hon'ble Judges/Coram:

U.L. Bhat, C.J.

Citation: AIR 1993 Gauhati 25

Print Page

Distinction between decree in mortgage suit and in partition suit

The three decisions relied on by the petitioner (referred to in para 3 above) are not relevant for deciding the issue arising in this case. They all relate to suits for mortgage and not partition. There is a fundamental difference between mortgage suits and partition suits. In a preliminary decree in a mortgage suit (whether a decree for foreclosure under Rule 2 or a decree for sale under Rule 4 of Order 34 of the Code), the amount due is determined and declared and the time within which the amount has to be paid is also fixed and the consequence of non payment within the time stipulated is also specified. A preliminary decree in a mortgage suit decides all the issues and what is left out is only the action to be taken in the event of non payment of the amount. When the amount is not paid the plaintiff gets a right to seek a final decree for foreclosure or for sale. On the other hand, in a partition suit the preliminary decrees only decide a part of the suit and therefore an application for passing a final decree is only an application in a pending suit, seeking further progress. In partition suits, there can be a preliminary decree followed by a final decree, or there can be a decree which is a combination of preliminary decree and final decree or there can be merely a single decree with certain further steps to be taken by the court. In fact several applications for final decree are permissible in a partition suit. A decree in a partition suit enures to the benefit of all the co-owners and therefore, it is sometimes said that there is really no judgment-debtor in a partition decree. A preliminary decree for partition only identifies the properties to be subjected to partition, defines and declares the shares/rights of the parties. That part of the prayer relating to actual division by metes and bounds and allotment is left for being completed under the final decree proceedings. Thus the application for final decree as and when made is considered to be an application in a pending suit for granting the relief of division by metes and bounds. Therefore, the concept of final decree in a partition suit is different from the concept of final decree in a mortgage suit. Consequently an application for a final decree in a mortgage suit is different from an application for final decree in partition suits.

Supreme Court of India

Shub Karan Bubna @ Shub Karan ... vs Sita Saran Bubna & Ors on 21 August, 2009

Bench: R.V. Raveendran, B. Sudershan Reddy

Reportable

Citation: 2010 (79) ALR 144, 2010 2 AWC(Supp)1325SC, JT2009(11)SC583, 2010(1)KCCR577, (2009)8MLJ921(SC), 2009(12)SCALE259, (2009)9SCC689, [2009]14SCR40

Print Page