Skip to content


Gurpadappa Dodappa Hasibi Vs. Karveerappa Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 359 of 1932
Judge
Reported inAIR1934Bom241; (1934)36BOMLR523
AppellantGurpadappa Dodappa Hasibi
RespondentKarveerappa Kulkarni
DispositionAppeal dismissed
Excerpt:
.....default having been made in payment of an instalment, the plaintiff applied for execution of the decree by sale of the property charged. defendants contended that the plaintiff must proceed by a separate suit to enforce the charge upon the land, and there must also be an attachment of the property to be sold :-;(1) that order xxxiv, rule 14, of the civil procedure code, did not apply to execution of a decree creating a charge for the first time, there being no prior mortgage:;ambalal bupubhai v. narayan tatyaba (1919) i.l.r. 43 bom. 631 : s. c. 21 bom. l.r. 698, followed ;;(2) that it was not necessary to make a prohibitory order of attachment under order xxi, rule 30, of the civil procedure code, and that the proper form of execution was to sell the property in execution of the..........a darkhast asking for execution by sale of the property charged. the learned subordinate judge decreed execution and directed issue of sale proclamation and warrant, and from that order this appeal is brought.2. it is said, in the first place, that the learned subordinate judge was wrong in not granting to the appellant an adjournment in order to enable him to prove that he was an agriculturist. he asked for an adjournment on the ground that his wife was ill and produced a medical certificate. he had already had one adjournment on the ground that he wanted to engage another pleader, and a second adjournment on the ground that he was ill himself, and i am not surprised that the learned subordinate judge refused to grant him a third adjournment. there is no substance in that point.3......
Judgment:

John Beaumont, Kt., C.J.

1. This is an appeal from the decision of the First Class Subordinate Judge of Dharwar. It appears that on April 24, 1931, a decree was made in favour of the plaintiff for Rs. 9,000 payable by annual instalments of Rs. 1,500, the first instalment being due on July 31, 1931, and there was a default clause making the whole amount payable, if default was made in payment of any one instalment. Then the amount due was charged on certain immoveable property of the defendants. That decree was passed on an award made in arbitration proceedings between the parties. Default was made under the decree, and, thereupon, the plaintiff filed a darkhast asking for execution by sale of the property charged. The learned Subordinate Judge decreed execution and directed issue of sale proclamation and warrant, and from that order this appeal is brought.

2. It is said, in the first place, that the learned Subordinate Judge was wrong in not granting to the appellant an adjournment in order to enable him to prove that he was an agriculturist. He asked for an adjournment on the ground that his wife was ill and produced a medical certificate. He had already had one adjournment on the ground that he wanted to engage another pleader, and a second adjournment on the ground that he was ill himself, and I am not surprised that the learned Subordinate Judge refused to grant him a third adjournment. There is no substance in that point.

3. The second point is that the decree is bad because the award on which it was founded required registration under the Indian Registration Act. It is, I think, doubtful whether the award did in fact require registration. But, assuming that it did, the point that it was not registered should have been taken at the hearing, and the decree resisted on that ground. The decree having been passed, it is, in my opinion, not open to the defendant in execution proceedings to allege that the decree was founded on evidence which ought not to have been admitted. I think, therefore, that there is nothing in that point.

4. Then it is said that an order for execution in this form does not lie. It is contended by Mr. Jahagirdar, on behalf of the defendants, that having regard to Order XXXIV, Rule 14, Civil Procedure Code, the plaintiff must proceed by a separate suit to enforce the charge upon the land. The rule clearly does not apply in terms because it only applies where a mortgagee obtains a decree for payment of money in satisfaction of a claim remaining under a mortgage, and here there was no mortgage. The decree itself created the charge, and it has been held by this Court in Ambald Bapubhai v. Narayan Tatyaba I.L.R. (1919) Bom. 631 : 21 Bom. L.R. 698 that Rule 14 of Order XXXIV, Civil Procedure Code, does not apply to execution of a decree creating a charge for the first time, there being no prior mortgage. Then it is said that even if that is so, there must be an attachment of the property under Order XXI, Rules. 30 and 54. But to my mind attachment is of no effect where the order itself creates the charge. It seems to me that in such a case the proper form of execution is the one directed in this case, viz., that the property be sold in execution of the decree, and it is not necessary to make a prohibitory order of attachment under Order XXI, Rule 54. That seems to have been the view of the Patna High Court in Jagannath Sao v. Debi Prasad Dhandhania I.L.R. (1923) Pat. 768 No doubt in that case there was only one order charging the property and directing the property to be sold in case default was made in payment. But in my opinion the principle must be the same whether there is one order charging the property and directing sale in default of payment, or two orders, the first charging the property and the second directing sale in default of payment. I think, therefore, that the third point also fails.

5. The appeal is dismissed with costs.

Barlee, J.

6. I agree. The section which prescribes the procedure in execution is Section 51, Civil Procedure Code. It provides that, subject to such conditions and limitations as may be prescribed, the Court may order execution by attachment and sale, or by sale without attachment of any property. Mr. Jahagirdar has not pointed out any conditions or limitations which would affect a decree of this nature. He has relied on Order XXI, Rule 30, Civil Procedure Code, which provides that every decree for payment of money may be executed by attachment and sale of the property. But this is not a mere money decree, but a money decree plus an order creating a charge. In fact this is really a decree of the nature of a mortgage decree though it is not exactly similar. Further, attachment by a prohibitory order is a step in execution designed for the protection of a judgment-creditor and not for the benefit of the judgment-debtor. It is unnecessary where property has been charged, and I can see no reason why the judgment-creditor in this case should have asked for a protection which he did not need.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //