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Ganpatsing Himatsing Vs. Bajibhai Mahmad Asmal - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 591 of 1910
Judge
Reported in(1911)13BOMLR292
AppellantGanpatsing Himatsing
RespondentBajibhai Mahmad Asmal
Excerpt:
.....absolute bar upon his right to apply to the court for execution by reason of the submission of his claim to the officer.;under section 29e, the claimant has to do one of two things before he could ask the court to execute the decree. he has either to produce a certificate from the talukdari settlement officer that the claim has been duly submitted or to apply in writing to that officer for such certificate accompanied by a certified copy of the decree and wait for the expiry of one month from the date of-receipt by the officer of the application. if the officer gave no certificate within that month, the claimant's right to apply to the court for execution revived. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government..........execution revived.2. there was, therefore, no absolute bar placed upon the right of the respondent to apply to the court for execution by reason of the submission of his claim to the settlement officer. the district judge thinks that the respondent is entitled to deduct the whole of the time from the date of the submission to the officer to the date on which the claim was considered and rejected by the latter, because submission, in the learned judge's opinion, means 'an attempt to explain and press the claim or an effort to settle it,' which in the present case was made, says the learned judge, when the officer rejected the respondent's claim on the 12th of august 1908, and he relies in support of that view on a dictum in the judgment of the learned chief justice of this court in.....
Judgment:

N.G. Chandavarkar, J.

1. The learned District Judge has gone beyond the plain language of Section 29E of the Gujarat Talukdars Act in differing from the Subordinate Judge and holding that the present darkhast of the respondent for execution of his decree is not barred by limitation. The facts are as follows. The respondent obtained his decree for money against the appellant, a Talukdar, on the 22nd of February 1903 and presented his first darkhast for execution on the 8th of December 1903. It is admitted that from the 21st of September 1905 the Talukdari estate of the appellant came by notice to be in the management of the Settlement Officer under Section 29B of the Act; and, as required by the provisions of that section the respondent submitted his claim under the decree in dispute for the consideration of the Officer on the 7th of March 1906. The respondent could not after that proceed with the execution of his decree through the Court without complying with the provisions of Section 29E. Under that section he had to do one of two things before he could ask the Court to execute his decree. He had either to produce a certificate from the Officer that the claim had been duly submitted or to apply in writing to the Officer for such certificate accompanied by a certified copy of the decree and wait for the expiry of one month from the date of receipt by the Officer of the application. If the Officer gave no certificate within that month, the respondent's right to apply to the Court for execution revived.

2. There was, therefore, no absolute bar placed upon the right of the respondent to apply to the Court for execution by reason of the submission of his claim to the Settlement Officer. The District Judge thinks that the respondent is entitled to deduct the whole of the time from the date of the submission to the Officer to the date on which the claim was considered and rejected by the latter, because submission, in the learned Judge's opinion, means 'an attempt to explain and press the claim or an effort to settle it,' which in the present case was made, says the learned Judge, when the Officer rejected the respondent's claim on the 12th of August 1908, and he relies in support of that view on a dictum in the judgment of the learned Chief Justice of this Court in Purushottam v. Rajbai (1909) 11 Bom. L.R. 1858. That dictum bears no such meaning as the District Judge attributes to it.

3. The decree must, therefore, be reversed and the darkhast disallowed with costs throughout on the respondent.


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