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Vyasacharya Madhavacharya Vs. Daji Baba - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 903 of 1941
Judge
Reported inAIR1945Bom20; (1944)46BOMLR718
AppellantVyasacharya Madhavacharya
RespondentDaji Baba
DispositionAppeal allowed
Excerpt:
decree-execution-(decree imposing perpetual liability-declaratory decree-duty of executing commit-res judicata-civil procedure code (act v of 190s), section 11.; a landlord obtained a decree against his tenants which directed : ' the defendants do pay the plaintiff an enhanced rent of rs. 3,04 per annum in respect of the said property from the date of suit.' the decree was successfully executed thrice. when it was sought to be executed for the fourth time, it was contended that the decree was merely a declaratory decree and was therefore incapable of execution :-;(1) that the decree directed the defendants to pay rs. 304 every year and did not merely declare their liability to pay that amount;;(2) that while it was not proper that a perpetual decree like the present should be passed, once..........year as enhanced rent. the appellants, therefore, sought to recover iq execution of the decree ten years' rent at that rate. nine of the respondents put in various contentions, but they were all disallowed by the execution court and the darkhast was ordered to proceed. but in appeal the learned district judge raised a new point as to whether the decree was executable. he held that the decree was merely a declaratory decree declaring that thedecree-holders, were entitled in future to get rs. 304 as rent per year and that the decree didi not give them any right to claim the amount as it became due year after year in execution of the decree. on that ground he allowed /the appeal and dismissed the darkhast.2. it is now contended in this second appeal that the decree is not a merely.....
Judgment:

Lokur, J.

1. This appeal arises out of a darkhast in which the decree-holders claimed to recover Rs. 1,717-13-0 as the balance out of the rent due to them for ten years 1926-27 to 1936-37. The decree .sought to be executed was passed in Suit No. 277 of 1926 filed by the appellants to recover possession of their land from their tenants the respondents, or in the alternative for enhancement of the rent. It was held in that suit that the defendants were permanent tenants, but the rent was enhancedand they were ordered to pay Rs. 304 every year as enhanced rent. The appellants, therefore, sought to recover iq execution of the decree ten years' rent at that rate. Nine of the respondents put in various contentions, but they were all disallowed by the execution Court and the darkhast was ordered to proceed. But in appeal the learned District Judge raised a new point as to whether the decree was executable. He held that the decree was merely a declaratory decree declaring that thedecree-holders, were entitled in future to get Rs. 304 as rent per year and that the decree didi not give them any right to claim the amount as it became due year after year in execution of the decree. On that ground he allowed /the appeal and dismissed the darkhast.

2. It is now contended in this second appeal that the decree is not a merely declaratory decree, but it directs the defendants to pay Rs. 304 every year, and moreover as the decree was executed three times before, it is not open to the judgment-debtors to contend that the decree is not executable. The relevant clause in the decree runs as follows :-

The defendants do pay the plaintiff an enhanced rent of Rs. 304 per annum! in respect of the suit property from the date of suit.

3. This shows that the decree directed the defendants to pay Rs. 304 every year and did not merely declare their liability to pay that amount. The executing Court cannot go behind the decree and it was not open in execution proceedings to contend that the decree should have been merely a declaratory decree. As pointed out by the learned District Judge, if such a decree for the payment of rent every year for ever be passed, the decree-holders will get a perpetual decree without having to pay any court-fee stamp for the recovery of their annual dues. It is not proper that such a perpetual decree should be passed in favour of the plaintiffs. But once it is passed, rightly or wrongly, the executing Court is bound to execute it and cannot question the propriety of that decree. On the face of it, the order in the decree directs the defendants to pay Rs. 304 every year to the plaintiffs. It is thus a decree capable of execution and the executing Court is bound to execute it as it stands. Moreover, on three previous occasions the decree was treated as a decree capable of execution and was executed without any objection on the part of the judgment-debtors. Hence the question as to whether it is a mere declaratory decree cannot be re-opened and is barred as res judicata. That is not a pure question of law, but it is a question of the construction of the decree and it was construed in previous darkhasts as a decree capable of execution. In Bibi Void Kuar v. Balkishan Das Mehra I.L.R. (1932) 14 Lah. 409 the wife had obtained a declaratory decree for maintenance at the rate of Rs. 45 per month against her husband and the decree was executed by the wife several times through the Court without objection. But when subsequently she again sought to recover arrears of maintenance for two and a half years, the husband for the first time raised the objection that the decree, being declaratory, was not executable, and it was held that the decree having been allowed to be executed in previous proceedings without any objection, the objection that the decree was incapable of execution could not be raised in subsequent proceedings. In the same way the execution of the decree in question cannot be refused on the ground that it is merely declaratory and not capable of execution.

4. The appeal is, therefore, allowed and the order passed by the executing Court restored. The appellants shall get their costs from the respondents throughout.


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