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Krishna Ji Raghunath Kothavle Deceased, by His Son and Heir Ramchandra Krishna Vs. Anandrav Ballal Kolhalkar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1883)ILR7Bom293
AppellantKrishna Ji Raghunath Kothavle Deceased, by His Son and Heir Ramchandra Krishna
RespondentAnandrav Ballal Kolhalkar
Excerpt:
.....futile attachment of property--subsequent application for (sic) arrest--more than three years from decree--application barred--limitation act (sic) xv of 1877, schedule ii, article 179. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of delivery vessel carrying rock phosphate was delivered at port of bombay - application filed by respondent earlier before delhi high court for appointment of certain individual as arbitrator had become infructuous because of his demise held, high court of bombay, is not correct in rejecting arbitration..........which had been temporarily arrested by the intervention of a third person. in this case the execution process had been completed by attachment and sale, and the proceeds of the sale paid to the judgment-creditor; the sale was subsequently set aside on the application of the judgment-debtor, and the proceeds of the sale ordered to be refunded. it is not said what was the nature of the fresh application for execution; but, assuming that it was against the same property, the court may well have held, on the authority of the previous cases, that the application was virtually one to have that part of the execution process repeated which had proved abortive owing to some material irregularity, and, therefore, one in continuance and revival of the old proceedings. in the present case,.....
Judgment:

Charles Sargent, Kt., C.J.

1. The appellant in this case had filed an award against the respondent on 19th December 1873, and by his darkhast of 1874 applied for and obtained the attachment of certain property of his judgment-debtor, which was, however, subsequently removed on the 16th July, 1875, on the application of one Bhaskarav, a minor, represented by his mother and guardian, Lakshimibai. Thereupon the appellant preferred a suit in. 1875 to have it declared that the property was liable to attachment, which suit was rejected on the 8th July, 1880. On the 30th November, 1880, the appellant presented a darkhast for the arrest of the respondent. The Subordinate Judge rejected the darkhast as beyond time, being of opinion that the decision of this Court in Kalyanbhai Dipchand v. Ghanashamlal Jadunathji I.L.R. 5 Bom. 29 was not applicable. In that case, the judgment-creditor had attached the property of his debtor, but the sale had been subsequently restrained by an injunction obtained in a suit brought by a third person against the judgment-creditor. This suit was afterwards dismissed, and the injunction fell to the ground. The representative of the judgment-creditor then applied to the Subordinate Judge to substitute his name for that of his father and to proceed with the case, and the Court held that the application was not barred by Article 179 of Act XV of 1877, adopting the view taken in the decisions in Booboo Pyaroo v. Syud Nazir Hossein 23 W.R. 133 Issurree Dassee v. Abdool Khalak I.L.R. 4 Cal 415 and Parasram v. Gardner I.L.R. I All. 355 that an application after the removal of an obstacle (such as the injunction was in that case) which has for a time rendered execution impossible, is not an application to execute the decree within the meaning of Act XV of 1877, Schedule II, Article 178, but merely an application for the continuance or revival of the former proceedings. In all the above cases, except the case of Issurree Dassee v. Abdool Khalak I.L.R. 4 Cal 415 the application to the Subordinate Judge was virtually to proceed with the process in execution, which had been temporarily arrested by the intervention of a third person. In this case the execution process had been completed by attachment and sale, and the proceeds of the sale paid to the judgment-creditor; the sale was subsequently set aside on the application of the judgment-debtor, and the proceeds of the sale ordered to be refunded. It is not said what was the nature of the fresh application for execution; but, assuming that it was against the same property, the Court may well have held, on the authority of the previous cases, that the application was virtually one to have that part of the execution process repeated which had proved abortive owing to some material irregularity, and, therefore, one in continuance and revival of the old proceedings. In the present case, however, the execution process applied for, was perfectly distinct in its nature from the former one, and in no way connected with it, and the application cannot, therefore, in our opinion, be regarded as one in continuance of the former proceedings, except, indeed, in the same sense in which any subsequent application for execution may be said to be in continuance of a former one, as being one in continuance of the effort to execute the decree. It is to be remarked that there was nothing to, have prevented a judgment-creditor who was on the alert from arresting the respondent, at the latest, after the removal of the attachment on 10th July, 1875; but, in any view of the appellant's position, we can discover no way of escaping, in the circumstances of this case from the express language of the Act, which requires that this application for execution should be within three years of the former one. We have been referred to the case of Lilachand Hatibhai v. Ganoba Printed Judgments for 1881 p. 329 where the judgment-creditor had been ordered in November, 1878, to refund to a stranger Rs. 63, part of a sum of Rs. 173 which had been levied by sale of his judgment-debtor's supposed goods, and the Court held that as to the sum of Rs. 63 the judgment-creditor would have three years to execute the decree from the date of the order of refund. The Court did not give its reasons, but apparently treated the judgment-debt as restored to that amount, and the decree as so far revived from that date;--it has, however, no application to the present case. We must, therefore, confirm the decree of the Subordinate Judge.


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