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TMI Blog1943 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... xecution of the decree subject to such conditions as it may impose. Such order shall be deemed to have been passed under Section 47, Civil P.C., 1908 (5 of 1908). 4. 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 D.B. Jiwandas v. Lilawanti Narindas 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 Central Provinces Money-lenders Act, Section 11 applies, the executing Court has the power to direct payment by instalments. In Ganpatrao v. Jagannathrao 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, Central Provinces Money-lenders Act, 1984. The word loan has been defined in Section 2(vii)(f) of the Act. It has been amended from time to time. Lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng powers under Section 11, Moneylenders Act, was the executing Court while in Ganpatrao v. Jagannathrao 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, Moneylenders Act. 6. In the case under reference, the decree was passed by the Bombay H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions 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. 8. Viscount Haldane in Kreglinger v. New Patagonia Meat and Cold Storage Co. Ltd. 1914 A.C. 25 has stated that 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. 9. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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. 11. These observations have our respectful concurrence. Similar observations are to be found in Emperor v. Nga Lun Thoung A.I.R. 1935 Rang. 370; Mahadeo Prasad Singh v. Jagarnath Prasad AIR1934Pat173 ; Mahabir Das v. Udit Narain Verma AIR1938Pat613 . 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 NagpurLaw Reports or the Indian Law Reports, Nagpur Series, they may refer the matter to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. (3) Whether D.B. Jiwandas v. Lilawanti Narindas was correctly decided. (4) Whether Seth Mulchand v. Seth Birdichand Misc. First Appeal No 278 of 1940, decided on 12-2-1943, was correctly decided. (5) Whether the statements of law in Ganpatrao v. Jagannathrao and Hari v. Indian Cotton Company Ltd., Bombay I.L.R.(1942) Nag. 777 are based on a correct interpretation of Section 11 of the Act. 13. The decision depends on a correct interpretation of Section 11, 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 Section 2(iv) does not help us in arriving at a conclusion. Under the Civil Procedure Code the Court which passes a decree has power to amend a decree Under Section 152 and 153 of the Code. Under Order 20, Rule 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 Order 20, Rule 11(2) as amended by a rule of our High Court, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecretal amount by instalments in Hari v. Indian Cotton Company Ltd., Bombay. If the executing Court directs stay of execution of the decree it is, in reality, an order under Section 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 Ganpatrao v. Jagannathrao, the provision is merely a compendious way of providing the various rights given where an order is made under Section 47, e.g., a right of appeal. See Commissioner of Income Tax, Bombay Presidency v. Bombay Trust Corporation, Ltd. for the interpretation of the expression is deemed to be. ) 15. If the order is passed by the executing Court in execution, it will be an order under Section 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 Section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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