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Narhar Raghunath Naphad Vs. Krishnaji Govind Nadgavandi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 126 of 1911
Judge
Reported in(1912)14BOMLR381
AppellantNarhar Raghunath Naphad
RespondentKrishnaji Govind Nadgavandi
Excerpt:
.....enjoy the profits of the land for twenty years, in satisfaction of the amount due on the mortgage. the third part directed that if in any year the judgment-debtors should fail to make the payment, the decree-holders should bring to sale the mortgaged land and get the money debt satisfied out of the sale proceeds......of the amount due on the mortgage. the second part ordered the judgment-debtors to pay to the decree-holders a certain amount of money annually in the nature of cash allowance. the third part directed that if in any year the judgment-debtors should fail to make the payment, the decree-holders should bring to sale the mortgaged land and get the money debt satisfied out of the sale proceeds. lastly-and this is the part of the decree with which we are now concerned for the purposes of the twelve years' limitation under section 48-the decree provided that if there should be ' any deceit or any just and legal obstruction of whatever nature ' to the mortgaged property being sold, the decree-holders should recover the deficiency or whatever might be due in respect of the cash allowance.....
Judgment:

N.G. Chandavarkar, J.

1. In holding the execution of the decree in the darkhast before us barred under Section 48 of the Code of Civil Procedure, the lower Court has overlooked the important consideration that the decree contemplated by the section should have been in all its parts ripe for execution on the date from which the twelve years' period of limitation is computed.

2. The decree in the present case was passed on the 14th of December 1892 and the present darkhast was presented on the 14th of December 1910. The decree consisted of four parts. In the first place, it directed that its holders should be put in possession of certain land, mortgaged to them by the judgment-debtors, and that the former should enjoy the profits of the land for twenty years, in satisfaction of the amount due on the mortgage. The second part ordered the judgment-debtors to pay to the decree-holders a certain amount of money annually in the nature of cash allowance. The third part directed that if in any year the judgment-debtors should fail to make the payment, the decree-holders should bring to sale the mortgaged land and get the money debt satisfied out of the sale proceeds. Lastly-and this is the part of the decree with which we are now concerned for the purposes of the twelve years' limitation under Section 48-the decree provided that if there should be ' any deceit or any just and legal obstruction of whatever nature ' to the mortgaged property being sold, the decree-holders should recover the deficiency or whatever might be due in respect of the cash allowance from the judgment-debtors ' personally and from their other property.' 11 The judgment-debtors made default in the payment of the r] cash allowance in 1893 with the result that the decree-holders, in compliance with the terms of the third part of the decree, brought the mortgaged property to sale under an order of the Court in execution. A part of the land was sold; but as the proceeds of the sale were not sufficient to satisfy the full amount of the debt, they were about to bring to sale the rest of the mortgaged property when the Collector intervened and had the impending sale stopped on the ground that it was Vatan property.

3. It was at this point-in the year 1908-that the decree became for the first time capable of execution in respect of the personal remedy given to the decree-holders in the fourth and last part. Until then, in respect of that part and that remedy, the decree was merely ancillary and provisional. The decree-holders could not till that point of time make any application for execution which it was in the power of the Court to grant, because till then there was no decree ripe for execution, so far as the personal remedy was concerned.

4. When Section 48 of the Code provides that 'where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application after the expiration of twelve years from the date of the decree sought to be executed, ' the execution and application contemplated relate to a decree which is executable at that date in respect of the application made and execution sought, and the ' order for the execution ' contemplated by the provisions of the section refers to an order which the Court could have made and enforced in obedience to the terms of the decree. This construction is supported by the ruling of the Allahabad High Court in Muhammad Suleman Khan v. Muhammad Yaf Khan ILR (1894) All. 39 , on the interpretation of Article 179 of the Limitation Act of 1877. The 1st paragraph of that Article provided for the execution of a decree three years' limitation ' from the date of the decree'. It was held that the paragraph ' must necessarily apply only where there is a decree or order which can at its date be executed.'

5. In the present case the decree-holders were not in a position to make any application for the execution of the decree against the judgment-debtors personally until there had been an arrest of the enforcement of the remedy given to them by the third part of the decree. Nor was the Court competent to grant the personal remedy until that arrest. When that contingency happened, the personal decree, which had been till then provisional and ancillary, became effective, and the application to enforce the personal remedy took the place of, as having been ancillary to, the previous proceedings in execution under the third part of the decree, rendered abortive by the Collector's order under the Vatan Act: Rahim All Khan v. Phul Chand (sic).

6. On these grounds the decree appealed from must be reversed and the darkhast remitted to the Court below to be disposed of on the merits according to law. The respondents, must pay to the appellants the costs of this appeal. Other costs of the darkhast to abide the result.


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