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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: (i) Whether the word "Court" in Section 11 of the Central Provinces Money-lenders Act, 1934 means only the court which passed the decree or also includes the court to which the decree is transferred for execution; (ii) whether the executing court has power to grant instalments under Section 11 of the Central Provinces Money-lenders Act, 1934.
Issue (i): Whether the word "Court" in Section 11 of the Central Provinces Money-lenders Act, 1934 means only the court which passed the decree or also includes the court to which the decree is transferred for execution.
Analysis: Section 11 is read with the scheme of the Act and with the corresponding powers of the decree court under the Civil Procedure Code. The provision allowing instalments is analogous to Order 20, Rule 11(2) of the Civil Procedure Code, 1908, which contemplates action by the court passing the decree. The reference to an order being deemed to have been passed under Section 47 of the Civil Procedure Code, 1908 supports the view that the legislature intended an order made by the decree court to be treated as appealable, rather than to confer a power of variation on the executing court. The structure of Sections 7, 9, 10 and 11 of the Act also indicates that "Court" bears the same restricted meaning in Section 11 as in the preceding provisions.
Conclusion: The word "Court" in Section 11 means the court which passed the decree and not the executing court.
Issue (ii): Whether the executing court has power to grant instalments under Section 11 of the Central Provinces Money-lenders Act, 1934.
Analysis: An executing court cannot alter or vary the terms of the decree. An order granting instalments changes the mode of satisfaction of the decree and therefore amounts to a variation of the decree itself. Section 42 of the Civil Procedure Code, 1908 gives the executing court the same powers in execution as if the decree had been passed by it, but it does not authorise variation of the decree by instalment orders. The contrary statements in earlier decisions were treated as obiter, while the earlier view that only the decree court has the power was approved.
Conclusion: The executing court has no power to grant instalments under Section 11.
Final Conclusion: The reference was answered by holding that instalment applications lie only before the decree court, the executing court cannot grant such relief, and the contrary earlier decision was overruled while the consistent view was approved.
Ratio Decidendi: Under Section 11 of the Central Provinces Money-lenders Act, 1934, the power to grant instalments is vested only in the court that passed the decree, and an executing court cannot vary the decree by making such an order.
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