1. This is an application under Order XX, rule 11 read with section 151, C. P. C, by the JD seeking an order for payment of the deoretal amount by instalment#.
2. The decree in this case was passed on 6th December, 1974 for the principal sum of Rs. 80,733.16 plus interest at 10% with effect from 17-8-1967 up to payment. It seems no appeal was filed by the JD against the decree.
3. The decree-holders filed execution on 26-8-76 by attachment and sale of movable property of the JD. On 7-2-77 the learned counsel for the JD appeared in Court and filed power on behalf of the JD.
4. He requested fotr adjournment for filing objections to the execution application, but my learned brother NaimuddiD, J refused to grant adjournment in view of the fact that enough time a as available to the JD to file objections. By order of the fame date Naimuddin, J. Granted the application and ordered the attachment to issue.
5. Thereafter, on 16-2-77 the present application, praying for instalments, was submitted. Notice of this application was ordered and in the meanwhile the exeuction of the writ of attachment was postponed.
6. The decree-holders have filed their objections to this application.
7. Mr. Zia Qureehi for the D. H. Resisted the application on the following grounds:
(1) That the application was liable to be dismissed a no order for payment of the decretal amount by instalments can be passed by - the Court after passing the decree without the consent of the D.
8. H.
(2) That the application is time-barred.
(3) That on the merits no grounds for the concession of payment by instalments have been made out. . attention to the provisions of sub-role (2) of Order XX, rule 11, C. P. C. Which reads a under t "After the passing of any such decree the Court may, on the application of the Judgment-debtor and with the consent of 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, the attachment of the property of the judgment-debtor, on the taking of security from him, or otherwise, as it thinks fit."
9. Counsel urged that the bare reading of the above provision clearly makes out that after the passing of the decree the order for payment of decretai amount by instalments can only be passed with the consent of the decree--holder and since the D. H. Has not consented to the application, the applica--petition is clearly liable to be dismissed. Mr. Arif the learned counsel for the JD, on the other hand, contended that by a local amendment the provisions of the aforesaid sub-rule (2) of rule 11, Order XX stood amended whereby the words "and with consent of the decree-holder" were substituted with the words "and after notice to the decree-holder". Counsel, therefore. Submits that so far as this Court is concerned, the Court has the jurisdiction aft er notice of the application to order payment by instalments even when the decreo-bolder refused to consent Mr. Zia, however, contended that the amendment relied upon by Mr. Arif has a limited application and seas confined to the Karachi Small Causes Court at Karachi and would, therefore not be applicable generally to all the civil Courts exercising jurisdic--petition under the Code of Civil Procedure. In this connection the learned counsel invited my attention to the list of amendments made in the Fret Schedule of the Code of Civil Procedure by the Court of Judicial Commissioner of Sind contained in AppendirQ F to the Sind Chief Court of Rules (Appellate Side) which were officially published on 4-11-1944. At page 73 of the book referring to Order XX, C. P. C. It is mentioned as under; "In sub-rule (2) of rule 11 in its application to Karachi Small Causes Court. Karachi, for the words 'and with the consent of the decree--holder' substitute 'and after notice to the decree-holder'."
10. The learned counsel also referred me to the Gazette Notification in this connection which is contained in the Issue of Sind Official Gazette dated 14-10-1934 at page 2233. The Notification may be reproduced !n extenso as under t "In exercise of the powers conferred by the proviso to section 125 of the Code of Civil Procedure, 1908 (V of 1908) the Court of the Judicial Commissioner of Sind, with the previous approval of the Governor-in--Council, a pleased to make the following ralet RULE The following amendment by the High Courts of Judicature at Madras and Rangoon shall be extended to the Court of Small Causes at Karachi, namelyr in sub-rule (2) of rule 11 of Order xin the First Schedule.To the Code of Civil Procedure, 1908, the words and after notice to the decree--holder' shall be substituted for the words 'and with the consent of the decree-holder'."
11. Having regard to the above notification on the basis whereof the amendments were effected by adopting similar amendments made by the 13iSh Courts of Judicature at Madras and Rangoon by the Court of Judicial Commissioner of Sind under section 125 of the C. P. C., It is clear from t express purport of the text of the amending rule that it was confined in I application to the Court of Small Causes at Karachi. Mr. Arif was unable to show me any other rule framed by the High Court under section 122 of the C. P. C.
12. Or otherwise making an amendment under role 11 of Order 8X. The obvious inference, therefore, is that the amendment was not eB generally in the Code of Civil Procedure an applicable in all the Courts in the Province of Sind. If this be the position, the learned counsel for the D. H. Is right in his submission that ibis application is liable to be dismissed on the simple ground that the decree-holders do not consent to the grant of payment by instalment.
13. Mr. Arif sought to support the application by invoking the provisions of section 11 of the West Pakistan Relief of Indebtedness Ordinance of 1960. The counsel submitted that the JD was a debtor as defined in the Ordinance and was, therefore, entitled to apply for a direction that the decretal amount be paid in Instalments. I find no substance in this contention. The term "debtor" is defined in section 2(e) of the Ordinance to mean a person who owes a debt and who earns his livelihood mainly by agriculture, or who earns his livelihood as a village artisan, or whose total aesete do not exceed R s. 5,000. Judgment. Debtor, in the present case, can by no stretch of imagination be a debtor within the meaning of the provisions of the Ordinance.
14. However, this application is liable to be dismissed on another short ground of limitation. Article 175 of the Limitation Act provides a period of months from the date of decree for application for an order of payment of deeretal amount by instalments. As stated earlier, the decree in this sae was passed on 6-12-74 and the application was submitted on 16.2-77, clearly long after the a months period prescribed under Article 175 expired. Confronted with this situation Mr. Arif made a two-fold contention. He firstly submitted that the 1D was served with a notice of the execu--petition application on 12-1-77 and a such he was not aware of the preparation and signing of the decree.
15. Consequently, the counsel con--tended that the terminus a quo for the commencement of the limitation period would be the date when the notice of execution was served from which the JD acquired knowledge that the decree has been signed. In this connection the learned counsel sought to invoke the aid of rule 260 of the Sind Chief Court Rules (O. S.) which Irter alla provides that in all complicated cases, but act otherwise, the Advocate shall be given notice as soon as the draft decree is prepared and be permitted to examine and sign the draft decree or file objections thereto. I am unable to agree with the learned counsel that this rule would invariably entitle the parties to the suit to notice of the preparation of the decree; and in any case the rule would be attracte only in complicated cases. The present is a case of money decree and I am unable to ace how this decree could come witbin the category of complicated cases. Be that as it may, the signing of the decree, can have no material bearing upon the period of limitation, or at aby rate, the date of knowledge regarding the signing of the decree can under no circumstances be relevant. The learned counsel has not referred to, the date on which the decree was signed.
16. It was then contended by Mr. Arif that the period of limitation would be computed from the date of the decree in appeal. Counsel submitted that against the order, passed by this Court dated 7-2,77 ordering attachment of the property of the JD, an appeal has been preferred, and consequently the date of decree would be the date of the order in appeal. In support of this proposition counsel cited the case of Abdul Karim v. Marans San Kyaw (1) in
(1) AIR 1932 Rang. 54 which it was held that the only decree for purposes of Article 175, Limitation Act is the decree of the appellate Court and, therefore, the period of limitation E would be computed, even in cases of eismissal of appeal, from the date of the decree of the appellate Court.
17. The contention is misconceived for, as pointed out earlier, the decree in this case was not appealed against and as scch there is no question of merging of the decree in the appellate decree. In the reported case the facts were that an appeal was taken to the appellate Court against the original decree and it was held that the period of limitation for an application under Order XX, rule 11, C. P. C. Would be computed from the date of the appellate decree as the original decree merged in the appellate decree. Hosever, the facts of the present case are obviously distinguishable inasmuch as the appeal relied upon is the appeal against the order in execution and not against the decree as such. Under the circumstances viewed from any angle the limitation in this case would commence from the date of the decree in respect of which the request for instalments has been made. Computing the limitation in this manner the present application is unques--tionably barred by limitation. s. A. H.Appeal dlssm lrsed,