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Balkrishna Wamnaji Gavankar Vs. Shiva Chima Mhatra - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 962 of 1909
Judge
Reported in(1911)13BOMLR230
AppellantBalkrishna Wamnaji Gavankar
RespondentShiva Chima Mhatra
Excerpt:
.....was made in 1903, but it was not decided by the district court till the 2nd august 1905, and the decree holder took a step-in-aid of its execution on the 10th october 1906. in the meanwhile, in 1904, a fifth darkhast was made but it was rejected by the subordinate judge as time-barred in 1907, the present darkhast. was filed, but the lower courts held it to be barred by res judicata by the order passed in the darkhast of 1904:;(1) that the right of the decree-holder to proceed in execution on the strength of the order dated 2nd august 19o5 in his favour could not be affected by the order of the subordinate judge's court passed in the darkhast of 1904, because the latter was the order of a lower court and it was passed in a darkhast which could not have legal validity so long as the..........darkhast and the order, there was an appeal pending in the district court against the order in the decree-holder's favour directing execution to proceed in darkhast no. 5 of 1903. that was an appeal preferred by the judgment-debtor and the appeal court upheld the order in the decree-holder's favour on the 2nd of august 1905. the decree-holder had under the appellate decree a right subsisting on that date to proceed in execution under the darkhast of 1903. as a matter of fact he did apply to the court on the 10th of october 1906. that was an application to take a step-in-aid of execution according to law and it was made within three years immediately preceding the date of the present darkhast of 1907. the right of the decree-holder to proceed in execution on the strength of the appellate.....
Judgment:

N.G. Chandavarkar, Kt., J.

1. The present darkhast of 1907 has been held by both the Courts below to be barred as res judicata by the order of the Subordinate Judge rejecting the previous darkhast No. 460 of 1904 on the ground that it was time barred. Though that might have been if this latter darkhast and the order thereon by the Subordinate Judge had stood alone, we have here the fact that, at the time of that darkhast and the order, there was an appeal pending in the District Court against the order in the decree-holder's favour directing execution to proceed in darkhast No. 5 of 1903. That was an appeal preferred by the judgment-debtor and the appeal Court upheld the order in the decree-holder's favour on the 2nd of August 1905. The decree-holder had under the appellate decree a right subsisting on that date to proceed in execution under the darkhast of 1903. As a matter of fact he did apply to the Court on the 10th of October 1906. That was an application to take a step-in-aid of execution according to law and it was made within three years immediately preceding the date of the present darkhast of 1907. The right of the decree-holder to proceed in execution on the strength of the appellate Court's order in his favour could not be affected by the order of the Subordinate Judge's Court passed in the darkhast of 1904, because the latter was the order of a lower Court and it was passed in a darkhast which could not have legal validity so long as the darkhast of 1903 was kept alive by proper proceedings. Therefore, the order appealed against is set aside and the Subordinate Judge is directed to allow execution in the darkhast of 1907. The respondents must pay to the appellant the costs throughout of this darkhast.


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