IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 5TH JUNE 2008 / 15TH JYAISHTA 1930 WP(C).No. 10974 of 2008(F) -------------------------- AGAINST THE ORDER IN EP. 366 /2007 IN OS.170/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------ ALIKUNJI, S/O.THEPARAMBIL KUNJI MOIDHEEN LOKAMALESWARAM VILLAGE, KODUNGALLUR TALUK. BY ADV. SRI.T.H.ABDUL AZEEZ RESPONDENT: ------------- MUHAMMED,S/O.KOTTAPPURATHU KUNJI MOIDEEN LOKAMALESHWARAM VILLAGE, KODUNGALLUR TALUK. BY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO. 10974 OF 2008 =========================== Dated this the 5th day of June, 2008 JUDGMENT Petitioner is the decree holder and respondent the judgment debtor in O.S.170/2006 on the file of Sub Court, Irinjalakuda. A decree was passed on 22.8.2007 directing respondent judgment debtor to pay Rs.2,00,000/- with interest at 6% per annum from 23.3.2006 and cost within two months providing that on failure decree holder is entitled to realise the sale of plaint schedule property which charged for the said amount. Petitioner filed E.P.366/2007 before Sub Court, Irinjalakuda for sale of the charged property. Respondent appeared and filed a counter stating that he is prepared to pay the decree debt in monthly instalments at the rate of Rs.10,000/-. Petitioner was not agreeable for allowing the judgment debtor to pay the decree debt in instalments. Under Ext.P1 order executing court closed the E.P W.P.(C)10974/08 2 directing the judgment debtor to pay the decree debt in monthly instalments at the rate of Rs.20,000/-. Judgment debtor filed E.A.355/2007 for permission to pay the decree debt in instalments. In view of Ext.P1 order, that petition was posted to next month. When the judgment debtor offered to pay Rs.10,000/- decree holder refused to receive the same and executing court adjourned the petition to the next month beyond one month, under Ext.P2 order. Exts.P1 and P2 orders are challenged in this petition filed under Article 227 of the Constitution of India. 2. Though notice was served on the respondent, he did not appear. 3. Learned counsel appearing for petitioner was heard. 4. Learned counsel appearing for petitioner relied on the decision of a Division Bench of this Court in Vysya Bank Ltd v. Kalapurackal Industries (1995(2) KLT 1) and argued that Rule 11 of Order XX W.P.(C)10974/08 3 of Code of Civil Procedure which enables the judgment debtor to pay decree debt in instalments is not available to a judgment debtor of a charge decree and for that sole reason the order is to be quashed. Learned counsel also pointed out that even if Rule 11 of Order XX applies, as provided under sub rule (2), the petition could be allowed only if the decree holder consents for payment of the decree debt in instalments after the date of the decree and as decree holder was never willing to provide for instalment payment, in any event the order is not sustainable. 5. Rule 11 of Order XX provides for payment of decree in instalments. Under sub rule 1 where and in so far as a decree is for payment of money, court is competent for sufficient reason to incorporate in the decree after hearing the plaintiff and defendants for payment of the amount in instalments. Sub rule (2) provides for payment of the decree debt in instalments subsequent to the decree. Under sub rule (2) after passing of any W.P.(C)10974/08 4 such decree, court can direct payment of the decree debt in instalments only with the consent of the decree holder. When the decree holder is not prepared to receive the decree debt in instalments under sub rule (2) of Rule 11, court cannot direct payment of decree debt in instalments. Moreover, Rule 11 of Order XX has no application in respect of a charged decree. The position is settled by the Division Bench decision in Vysya Bank's case (supra). Learned Sub Judge should not have permitted respondent to pay the decree debt in instalments as done under Ext.P1 order. Therefore Exts.P1 and P2 orders are quashed. Sub Judge,Irinjalakuda is directed to proceed with the execution petition in accordance with law expeditiously. Writ Petition is disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006