Citation Codes

Equivalent Citations

citation codes

Case Number

Misc. Appeal No. 77 of 1943

Judges

Grille, C.J
Niyogi
Sen, JJ.

Acts

456.17 Section 11 of the Money-lenders Act, is a provision similar to O. 20, R. 11(2)
Section 11 of the C.P Money-lenders act. Lord Halsbury in 1901 A.C 4955
Section 11 of the Central Provinces Money-lenders Act, 1934 (13 of 1934).
Central Provinces Money-lenders (Second Amendment) Act 1937, (24 of 1937),
Section 11 applies of the Central Provinces Money-lenders Act,
Section 11 of the Central Provinces Money-lenders Act, 1934.
Section 11 of the C.P Money-lenders act, 1934,
Section 11 of the Money-lenders Act, 1934,
Section 11 of the Moneylenders Act.4.
Section 11 of the Moneylenders Act,
Section 47 of the CPC, 1908 (5
Section 11 follows S. 10

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Smart Summary

Full Bench Opinion — Summary (Section 11, Central Provinces Money-lenders Act, 1934)

Factual and Procedural Background

This reference to a Full Bench arose from a dispute about the correct interpretation of Section 11 of the Central Provinces Money-lenders Act, 1934 (13 of 1934). A decree originally passed by the Bombay High Court was transferred to the Nagpur Court for execution. The judgment-debtor applied to the executing Court for payment of the decretal amount by instalments; the executing Court (Second Subordinate Judge, first class, Nagpur) rejected that application by order dated 3 March 1943. The judgment-debtor appealed to the High Court. Because of conflicting Division Bench authorities in this High Court on whether the "Court" in Section 11 refers only to the decree‑passing Court or also to the executing Court, Bose, J. referred the question to the Full Bench for authoritative resolution.

The opinion also reviews related statutory amendments (notably Acts of 1937 and 1939 affecting the definition of “loan”) and a series of prior decisions of the Nagpur High Court and other authorities that have led to confusion about the locus of power to grant instalments under Section 11.

Legal Issues Presented

Whether the word "Court" used in Section 11 of the Central Provinces Money-lenders Act, 1934, means the Court which passes the decree or whether it also includes the Court to which the decree is transferred for execution.
Whether the executing Court has power to direct payment of the decretal amount by instalments under Section 11 of the Act.
Whether I.L.R (1938) Nag. 407 was correctly decided.
Whether Misc. First Appeal No. 278 of 1940 was correctly decided.
Whether the statements of law in I.L.R (1940) Nag. 468 at p. 482 and in I.L.R (1942) Nag. 777 at pp. 778–779 are based on a correct interpretation of Section 11 of the Act.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in This Opinion
I.L.R (1938) Nag. 407	Held (in that case) that an executing Court has power to direct payment by instalments under Section 11.	The Full Bench concluded that I.L.R (1938) Nag. 407 was not correctly decided in relation to Section 11 and expressly overruled it (see para. 20(3)).
I.L.R (1940) Nag. 468	Contained statements (noted at p.482) that the power under Section 11 is conferred on the decree Court (and commented on the meaning of "is deemed to be").	The opinion treats the statements in that case as obiter in part but ultimately states that the statements at p.482 are based on a correct interpretation and are approved (para. 20(5)). The decision itself had overlooked I.L.R (1938) Nag. 407.
I.L.R (1942) Nag. 777	Division Bench observed that the correct course is to proceed before the decree Court for applications under Section 11 (pp. 778–779); in the reported case the Bench considered the executing Court's exercise of discretion and declined to interfere on facts.	The Full Bench states that the factual decision on instalments disposed of the case and that the observations at pp. 778–779 were not necessary to that decision (hence obiter). Nevertheless, the Full Bench records at para. 20(5) that the statements of law in that report are based on a correct interpretation and are approved.
Misc. First Appeal No. 278 of 1940 (Nagpur; Grille, C.J. & Puranick, J.)	Held that the executing Court has no power to direct payment by instalments under Section 11; power rests with the Court which passed the decree.	The Full Bench agrees with and approves the reasoning and conclusion in that case (para. 20(4)). The decision is treated as a clear authority for the proposition that the executing Court has no such power.
Lord Halsbury, 1901 A.C. 495 (at p.506)	Proposition that a judgment is authority only for what it actually decides and should not be quoted for propositions only logically following from it; i.e., distinction between ratio decidendi and obiter.	Cited to support the distinction between binding ratio and non‑binding obiter; used to justify not treating certain earlier statements as binding precedents (para. 7–8).
Viscount Haldane, 1914 A.C. 256 (pp. 39–40)	Observation on the binding force of previous decisions depending on whether they establish a principle.	Quoted to explain when previous decisions are binding and to support the approach to conflicting Division Bench decisions (para. 9–10).
Halsbury's Laws of England, vol. 19 (Edn. 2)	Statement that ratio decidendi alone is binding and that obiter statements have only persuasive effect (para. and citation referenced in text).	Used as doctrinal support for treating some earlier statements as obiter and for articulating the rule that only ratio binds (para. 8–9).
Salmond on Jurisprudence (9th Ed.)	Material on precedent and the effect of not following prior decisions; cited for doctrine about overruling vs. refusing to follow.	Relied on for the proposition that a Court of co-ordinate jurisdiction cannot overrule another but may refuse to follow it, leaving the law in doubt until settled by higher authority (para. 16).
Allen, Law in the Making (referenced)	Discusses practical difficulties of comprehensive citation and reliance on counsel; highlights fallibility in citing all pertinent decisions.	Quoted to explain how prior decisions may be overlooked and why conflicting authorities can arise (para. 11–12).
I.L.R (1940) Mad. 454	Statement that one Division Bench should regard itself bound by another Division Bench on a question of law and, if it disagrees, it should refer the matter to a Full Bench.	Adopted to support the procedural convention that conflicting Division Bench views should be referred to a Full Bench; the Full Bench endorses that approach (para. 13–15).
12 Rang. 320	Authority that the Court which passes the decree alone has power to grant instalments under O.20, R.11(2) and that the executing Court cannot do so.	Relied on to show that an executing Court cannot vary a decree by ordering instalments under the Code and to support the conclusion that Section 11 should be similarly restricted to the decree Court (para. 13).
54 Bom. 216	Used for interpretation of the expression "is deemed to be".	Cited to explain the statutory fiction created by Section 11's deeming provision and how it operates to make certain orders appealable (para. 13–14).
I.L.R (1942) Nag. 772 (at p.774)	Interpreted the "such order" phrase as referring to an order directing payment of the decretal amount by instalments.	Cited to show that some previous cases interpreted the deeming clause as applying to instalment orders; the Full Bench considered that interpretation in its analysis of the statutory fiction (para. 13).
13 Rang. 570; 13 Pat. 303; 17 Pat. 594	Authorities cited in support of the proposition about following earlier decisions and the need for Full Bench references when reconsideration is required (para. 15).	Relied on to explain conventions and authorities supporting the practice of referring inter‑Division conflicting decisions to a Full Bench (para. 15).
Second Appeal No. 626 of 1940 (observations of Pollock, J.)	Procedural reference for the convention of referring matters to Chief Justice for placement before a Full Bench when reconsideration of a multi‑judge decision is involved.	Used to describe High Court practice and rules for referring questions to a Full Bench (para. 15).
48 Cal. 691	Example cited for the proposition that a Court of co-ordinate jurisdiction may refuse to follow a previous decision it considers wrong, but cannot overrule it.	Used to illustrate the difference between refusing to follow and overruling a precedent (para. 15–16).

Court's Reasoning and Analysis

The Full Bench's analysis proceeds from statutory interpretation, comparative consideration of procedural provisions in the Code of Civil Procedure (CPC), and principles about the binding force of precedents.

Textual and contextual interpretation of Section 11: The principal question was what the word "Court" in Section 11 means. The Court examined the statutory text and relevant definitions (noting that the definition in S.2(iv) did not resolve the point).
Analogy with the CPC: The Bench compared Section 11 with O.20, R.11(2) of the CPC (which allows the decree-passing Court, after notice, to order postponement or instalments on terms) and observed that Section 11 is a provision similar to that rule (citing I.L.R (1943) Nag.456).
Competence of executing Courts: The Court emphasized the settled principle that a Court executing a decree has no power to alter or vary the terms of the decree. An order directing payment by instalments varies a decree and therefore is not within the competence of an executing Court. The Full Bench relied on 12 Rang. 320 for that proposition.
Statutory fiction and the deeming clause: Section 11 was amended to add that during the pendency of the inquiry the Court may order a stay of execution and that "such order shall be deemed to have been passed under Section 47 of the CPC." The Bench analysed the grammar and purpose of this clause: grammatically "such order" seems to refer to a stay-of-execution order but interpreting it literally produces no sensible meaning. The Court considered that the Legislature used a deeming fiction to make orders under Section 11 appealable by treating them as if passed under S.47, even though when passed by the decree Court they are not literally orders in execution. Thus, the deeming provision supports the conclusion that Section 11 contemplates an order by the decree-passing Court, which is then made appealable by statutory fiction.
Consideration of precedent and ratio/obiter distinction: The Bench reviewed conflicting Division Bench decisions. It applied established authorities (Lord Halsbury; Viscount Haldane; Halsbury's Laws; Salmond; Allen) to reinforce that only the ratio decidendi of earlier cases is binding; obiter statements are persuasive only. It found that some prior statements were obiter and not binding because they were unnecessary to the decision or because earlier cases had been overlooked.
Synthesis and conclusion: Reading the statute in its setting, considering CPC rules, and the purpose of the deeming clause, the Full Bench concluded that the word "Court" in Section 11 has a restricted meaning referring to the Court which passed the decree (including original or appellate Court as indicated by later amendments to related sections). Consequently, an executing Court lacks power to grant instalments under Section 11.

Holding and Implications

Holding:

The word "Court" in Section 11 of the Central Provinces Money-lenders Act, 1934, refers to the Court which passed the decree (including the original or appellate Court where applicable); it does not include the executing Court to which a decree is transferred for execution.
The executing Court has no power to grant instalments under Section 11 of the Act.
I.L.R (1938) Nag. 407 was incorrectly decided on this point and is overruled.
Misc. First Appeal No. 278 of 1940 is correctly decided and is approved.
The statements of law in I.L.R (1940) Nag. 468 at p. 482 and in I.L.R (1942) Nag. 777 at the pages cited are based on a correct interpretation and are approved, although earlier parts of those reports included obiter statements which are not binding precedents.

Implications:

The direct consequence of the Full Bench's ruling is that applications for payment of decretal amounts by instalments under Section 11 must be made to the Court which passed the decree (or its appellate equivalent where relevant), and not to the executing Court. The Full Bench expressly overruled the contrary authority in I.L.R (1938) Nag. 407 and approved authorities holding the restricted meaning. The opinion resolves the conflicting Division Bench authorities in this High Court on this point and establishes an authoritative position for future cases within the jurisdiction of this Court.

The reference concludes with the statement: "Reference answered."

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D.D Bilimoria, Electric Contractor Judgment-Debtor v. Central Bank Of India Ltd., Bombay Decree-Holder .

Sen, J.:— The point referred to us for decision is: “Was not I.L.R (1942) Nag. 7771 rightly decided?” The decision depends on the interpretation of Section 11 of the Central Provinces Money-lenders Act, 1934 (13 of 1934). The section, as originally enacted, was in these terms:

11. Power to direct payment of decretal amount by instalments. The Court may, at any time, on the 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 this Act comes into force, in respect of a loan shall be paid in such number of instalments and subject to such conditions on the dates fixed by it as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit.

2. The section was amended by Act 19 of 1937 by the insertion of the sentences:

During the pendency of the inquiry under this section the Court may order the stay of execution of the decree subject to such conditions as it may impose. Such order shall be deemed to have been passed under Section 47 of the CPC, 1908 (5 of 1908).

3. The point is whether the “Court” referred to in the section means solely the Court which passed the decree or does it also include the Court to which a decree is sent for execution. On this point, there is a conflict of decisions in this High Court. In I.L.R (1938) Nag. 4072 the decree was passed by the Bombay High Court. It was transferred for execution to the Jubbulpore Court. An application was made to the executing Court for grant of instalments. It was rejected. In appeal, the view taken was that in cases to which the Section 11 applies of the Central Provinces Money-lenders Act, the executing Court has the power to direct payment by instalments. In I.L.R (1940) Nag. 468,3 the question was whether the Court had the power to grant instalments in the case of decrees obtained in mortgage suits. This turned on the interpretation of the word “loan” used in Section 11 of the Central Provinces Money-lenders Act, 1934. The word “loan” has been defined in S. 2(vii)(f) of the Act. It has been amended from time to time. “Loan” as defined originally excluded a mortgage. The effect of the amendment introduced by Act 24 of 1937 was that it did not exclude a mortgage. Act 17 of 1939 enacted that the amendment made by the Central Provinces Money-lenders (Second Amendment) Act 1937, (24 of 1937), which was in force with effect from 19th March 1937 shall be deemed to be in force with effect from 1st April 1935. The order in I.L.R (1940) Nag. 468 governed the decision in a large number of cases. In all the cases preliminary decrees on mortgages were passed prior to 19th March 1937 on which date Act 24 of 1937 came into operation whereby a mortgage was included within the definition of “loan.” In these cases, the judgment-debtors had applied for instalments under S. 11 of the Act. It was held that the several amendments effected in the definition of the word “loan” did not affect pending proceedings and that the judgment-debtors were not entitled to instalments under S. 11 of the Act. The question whether the Court which passed the decree or the executing Court has the power to grant instalments was not directly in issue. In one of the cases, an objection was raised that the application of the judgment-debtor for instalments made to the trial Court was incompetent. The Bench at page 482 observed that this kind of application must be made to the civil Court exercising ordinary jurisdiction. There is no reference to the decision in I.L.R (1938) Nag. 407. Apparently, the attention of the Bench was not invited to this case. In I.L.R (1942) Nag. 777 the Bombay High Court transferred its decree for execution to the Court of the Additional District Judge, Amraoti. An application was made to the executing Court for grant of instalments under S. 11 of the Act. Instalments were granted, the instalments being 4000 a year. The judgment-debtor filed an appeal asking that they be reduced to Rs. 1700 a year. The Bench was of the opinion that the executing Court exercised its discretion judicially, and that there was no ground for interference. This was sufficient for the disposal of the appeal. At pages 778-779 in the concluding paragraph the Bench observed:

It was brought to our attention, however, by counsel for the respondent that in I.L.R (1938) Nag. 407, the view was expressed that the proper Court for exercising powers under Section 11 of the Moneylenders Act, was the executing Court while in I.L.R (1940) Nag 468, the same Bench held that the power was conferred upon the decree Court. The Bench that decided those two cases was composed of the Chief Justice and Bose, J. We have discussed the matter with Bose J., in the light of those conflicting decisions and he has expressed the view, with which we agree, that the second is the correct view, that is to say, that these applications should be made to the decree Court. Owing to the ambiguous wording of the section we do not think that the fact that applications have been made to the executing Court should be treated as fatal to the resulting order—and indeed in this case the appeal having failed and there being no cross-objection or appeal this point does not really arise—but as we apprehend that a certain amount of confusion must have been caused as a consequence of those conflicting decisions we desire to observe that in our opinion the correct course is to proceed before the decree Court when making applications under Section 11 of the Moneylenders Act.

4. In the case under reference, the decree was passed by the Bombay High Court. This decree has been transferred by the Bombay High Court to the Nagpur Court for execution. The judgment debtor applied for grant of instalments. This was rejected by the Court of the Second Subordinate Judge, first class, Nagpur, by the order, dated 3rd March 1943. The judgment-debtor filed an appeal in the High Court. The matter came up for hearing before Bose, J. who has made this reference to the Full Bench in order that the conflict may be resolved and the law may be stated authoritatively. In addition to the cases referred to in the order of reference our attention has been invited to the decision in Misc. First Appeal No. 278 of 1940.4 It was decided by one of us Grille, C.J and Puranick, J. A consent instalment decree had been passed by the Bombay High Court. It was transferred to the Hoshangabad Court for execution, the executing Court had rejected the application of the judgment-debtor for grant of easier instalments. The judgment-debtor filed an appeal in the High Court against the order. The point was whether the executing Court had the power to direct the payment of the decretal amount by instalments. After consideration of the relevant provisions of the Act, the Bench came to the conclusion that under S. 11, the Court which passed the decree had the power to grant instalments under S. 11, but the executing Court had no such power.

5. Five Judges of this Court have taken the view that the “Court” referred to in S. 11 of the Act, means a Court which passed the decree and that the executing Court to which a decree is transferred for execution is not empowered to grant instalments. The statements in I.L.R (1940) Nag. 468 at p. 482 and in I.L.R (1942) Nag. 777 at pp. 778, 779 are obiter and are not binding as precedents. The decision in Misc. First Appeal No. 278 of 19404 has not been published in the Indian Law Reports Nagpur Series. It is, however, a clear authority for the proposition that the executing Court has no power to grant instalments under Section 11 of the C.P Money-lenders act. Lord Halsbury in 1901 A.C 4955 at p. 506 lays down the following propositions:

Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.

6. Viscount Haldane in 1914 A.C 256 at pages 39, 40 has stated that

7. The binding force of previous decisions, unless the facts are indistinguishable, depends on whether they establish a principle. To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect the previous decisions of a Court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a Code.

8. The ratio decidendi of a case alone is a binding authority as a precedent. The statements which are not necessary to the decision, which go beyond the occasion and lay down a rule that is unnecessary for the purpose in hand, have no binding authority on another Court, though they may have some merely persuasive efficacy. (Halsbury's Laws of England, vol. 19, Edn. 2 para. 556 at pp. 251-252; Salmond on Jurisprudence, Edn. 9, pp. 245-246; Allen's Law in the Making-Precedent, pp. 148 and 191.) Viewed in the light of the principles enunciated above, the statements of law in I.L.R (1940) Nag. 468 and in I.L.R (1942) Nag. 777 are obiter. They are entitled to respect but are not binding as authorities. In I.L.R (1940) Nag. 468 the previous decision in I.L.R (1938) Nag. 407 was overlooked. In this connection, a reference may be made to the observations of Professor Allen in “Law in the Making” at page 190:

A more serious difficulty, and one likely to increase in future with the ceaseless growth of recorded cases, is that exact and comprehensive citation cannot be ensured. If the Judge is to be bound by precedents he should have all the relevant authorities at his command. But he cannot carry them all in his head, nor is it always easy to find them, in spite of the many modem devices for facilitating the search. He must depend largely on the assistance of counsel, and since the industry and acumen of the Bar are also fallible. It is not uncommon to meet with cases which might have been decided otherwise, or are even overruled later, because pertinent decisions have not been taken into consideration.

9. In England, the decisions of the Divisional Courts upon questions of law are binding upon Courts of first instance, and are, as a general rule, followed by other Divisional Courts as a matter of judicial comity, but where there are conflicting decisions, it is the duty of the Divisional Court to form its own opinion: Halsbury's Laws of England, vol. 19, Edn. 2, para. 556 at p. 255, (1884) 9 P.D 967 at p. 98, (1925) 133 L.T 2388 at p. 239, (1929) 1 K.B 249 at p. 25 and (1935) 1 K.B 1510 at p. 18. The same principle is followed in India. In I.L.R (1940) Mad. 45411 at p. 474 it is observed:

The Division Bench is the final Court of appeal in an Indian High Court, unless the case is referred to a Full Bench, and one Division Bench should regard itself bound by the decision of another Division Bench on a question of law …… If a Division Bench does not accept as correct the decision on a question of law of another Division Bench the only right and proper course to adopt is to refer the matter to a Full Bench, for which the rules of this Court provide. If this course is not adopted, the Courts subordinate to the High Court are left without guidance. Apart from the impropriety of an appellate Bench refusing to regard itself bound by a previous decision on a question of law of an appellate Bench of equal strength and the difficulty placed in the way of subordinate Courts administering justice there are the additional factors of the loss of money and the waste of judicial time.

10. These observations have our respectful concurrence. Similar observations are to be found in 13 Rang. 57012 at p. 686; 13 Pat. 30313 at p. 308; 17 Pat. 59414 at pp. 602-603. The convention of our High Court is that where a Bench of two Judges considers that the decision of the proceedings pending before them involves reconsideration of a decision of two or more Judges published in the Central Provinces Law Reports, the Nagpur Law Reports or the Indian Law Reports, Nagpur Series, they may refer the matter to the Chief Justice with a recommendation that it be placed before a Full Bench: see R. 12, Ch. 1, High Court Rules and the observations of Pollock, J. in second Appeal No. 626 of 1940.15 The statement of law in I.L.R (1942) Nag. 777 at pp. 778-779 reflects the views of three Judges but it remains a statement of the Division Bench consisting of two Judges and cannot be taken as a decision of a Full Bench. A Court of co-ordinate jurisdiction may refuse to follow a previous decision of another Court of co-ordinate jurisdiction if it considers it to be wrong—48 Cal. 6916 at pp. 74-76. But it cannot overrule such decisions:

Overruling is an act of superior jurisdiction. A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed statute, and a new principle is authoritatively substituted for the old. A refusal to follow a precedent, on the other hand, is an act of co-ordinate, not of superior jurisdiction. Two Courts of equal authority have no power to overrule each other's decisions. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other, and the law remains in doubt until settled by some higher authority: Salmond on Jurisprudence, 9 Edn pp. 240, 241.

11. I.L.R (1942) Nag. 777 at pp. 778-779 was a decision on a question of fact, viz., that the judgment-debtor was not entitled to easier instalments. This was sufficient for the disposal of the case. The observations made at pages 778-779 were not necessary for the purpose of that case and cannot be treated as a decision on that point. In order to settle the conflict of decisions of this High Court and to void uncertainty in the future it is desirable to resettle the points for our decision. They may be formulated in these terms: (1) Whether the Court mentioned in Section 11 of the C.P Money-lenders act, 1934, is the Court which passes the decree or does it include the Court to which the decree is transferred for execution. (2) Whether the executing Court has power to direct payment of the decretal amount by instalments under S. 11 of the Act. (3) Whether I.L.R (1938) Nag. 407 was correctly decided. (4) Whether Misc. First Appeal No. 278 of 19404 was correctly decided. (5) Whether the statements of law in I.L.R (1940) Nag. 468 at p. 482 and I.L.R (1942) Nag. 777 at pp. 778-779 are based on a correct interpretation of S. 11 of the Act.

12. The decision depends on a correct interpretation of Section 11 of the C.P Money-lenders act, 1934. The problem is to find out the meaning to be given to the word ‘Court’ used in that section. Does it mean solely the Court which passed the decree or does it also include the Court to which the decree is transferred for execution? The definition of the word given in S. 2(iv) does not help us in arriving at a conclusion. Under the Code of Civil Procedure the Court which passes a decree has power to amend a decree under Ss. 152 and 153 of the Code. Under O. 20, R. 11(1) the Court may at the time of passing the decree order that the payment of the decretal amount shall be postponed or shall be made by instalments. Under O. 20, R. 11(2) as amended by a rule of our High Court, the Court, after passing the decree, may on the application of the judgment-debtor and after notice to 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, attachment of property of the judgment-debtor or the taking of security as it thinks fit. The order granting instalments passed by the Court under this sub-section is appealable. See I.L.R (1943) Nag. 456.17 Section 11 of the Money-lenders Act, is a provision similar to O. 20, R. 11(2) of the CPC.

13. A Court executing the decree has no power to alter or vary the terms of the decree. The order directing payment of the decretal amount by instalment is an order which varies the decree. It is not within the competence of the Court executing the decree to alter or vary it. 12 Rang. 320,18 is a clear authority for the proposition that the Court which passes the decree alone has power to grant instalments under O. 20, R. 11(2) and that it is not within the power of the executing Court to do so. Under S. 42 the Court executing the decree sent to it has the same powers in executing such decree as if it had been passed by itself. But this does not clothe the executing Court with the power to vary or alter the decree by directing payment of the decretal amount by instalments. If the Legislature intended to depart from this well-established principle and desired to clothe the executing Courts with the power to grant instalments under Section 11 of the C.P Money-lenders act, it would have stated so in clear and unambiguous terms. If we closely scrutinise the last sentence it furnishes us with a clue for the solution of the questions which we have to decide. The sentence runs thus: “such order shall be deemed to have been passed under Section 47 of the CPC” We have underlined (here italicized) the opening words with a purpose; “such order” may refer to the order staying execution of a decree or it may refer to an order directing payment of the decretal amount by instalments. Grammatically, it would refer to an order for stay of execution but that would not convey any sensible meaning of the expression “shall be deemed to have been passed under Section 47 of the CPC” Such order has been interpreted to mean an order directing payment of the decretal amount by instalments in I.L.R (1942) Nag. 77219 at page 774. If the executing Court directs stay of execution of the decree it is, in reality, an order under S. 47. It cannot be deemed to be an order under that section. The use of the expression “shall be deemed to have been” involves a fiction. It is not in reality an order under the section but is treated as one passed under that section. As observed in I.L.R (1940) Nag. 468 at p. 482, the provision is merely a compendious way of providing the various rights given where an order is made under S. 47, e.g, a right of appeal. (See, 54 Bom. 21620 for the interpretation of the expression “is deemed to be.”)

14. If the order is passed by the executing Court in execution, it will be an order under S. 47. If, however, the order is passed by the Court which passed the decree it would not be an order in execution and would not be an order under S. 47. The Legislature intended that an order granting instalments by the Court should be appealable and, therefore, it was necessary to introduce a statutory fiction and to treat it as an order under Section 47 of the CPC. This makes it clear that the order contemplated under S. 11 is an order passed by the Court which passed the decree and not by the executing Court in execution. If we look to the scheme of the Act that strengthens this conclusion. The “Court” under S. 7 would necessarily mean the Court which tries the suit. Section 9, as originally enacted referred to the Court which meant the Court which passed the decree. It was subsequently amended by Act 24 of 1937 by the words ‘original or appellate’ in order to enable the appellate Court also to exercise the power conferred on the original Court. Section 10 will necessarily refer to the Court which is passing the decree. Section 11 follows S. 10 and the expression ‘Court’ must bear the same meaning which it has in S. 10. The matter has been very elaborately reviewed and discussed in a recent decision in Misc. First Appeal No. 278 of 1940. We agree with the conclusion reached in that case and with the reasoning on which it is based. Our decisions on the points formulated in para. 19 may be stated in these terms: (1) The word ‘Court’ used in Section 11 of the Money-lenders Act, 1934, has a restricted meaning. It refers to the Court which passed the decree and not to the Court to which the decree is transferred for execution. (2) The execution Court has no power to grant instalments under S. 11 of the Act. (3) The case in I.L.R (1938) Nag. 407 was not correctly decided and we overrule it. (4) The case in Misc. First Appeal No. 278 of 1940 was correctly decided and is approved. (5) The statements of law in I.L.R (1940) Nag. 468 at p. 482 and in I.L.R (1942) Nag. 777 at pp. 777, 779 are based on a correct interpretation and are approved.

15. Reference answered.

D.D Bilimoria, Elect... v. Central Bank Of Indi...