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Bhimappasaheb Gireppasaheb Vs. Ramappa Balappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberFirst Appeal No. 8 of 1944
Judge
Reported inAIR1945Bom85; (1944)46BOMLR725
AppellantBhimappasaheb Gireppasaheb
RespondentRamappa Balappa
DispositionAppeal dismissed
Excerpt:
.....word default in order xxi, rule 57, of the civil procedure code, in so far as it applies to the decree-holder, means default not merely in the sense of non-appearance or non-payment of the process fees, but includes the case of non-prosecution as well. that the purchaser had failed to prove that the resistance was caused by the sons at the instance of the father. shankardas vishnudas air1942bom282 in which an application was made in 1938 to revive a darkhast of 1925 in execution of a decree of october 11, 1924. the darkhast of 1938 was clearly barred by limitation, and a prayer for revival of the earlier darkhast would have seriously prejudiced the rights of thejudgment debtors. in the case beforeus, the earlier darkhast was dismissed on march 31, 1943 and the application dated..........the darkhast and to proceed with it from the stage which it had previously reached.3. the learned judge held that it was the duty of the court to redress the wrong and rectify what turned out to be an error. exercising his power under section 151 of the civil procedure code, the court held that the order passed on october 11, 1943, reviving the darkhast was right and rejected the contentions of the judgment-debtor. it is against that order that this: appeal has been filed.4. it has been contended by mr. coyajee for the appellant that the order of march 31, 1943, dismissing the darkhast was a decree and that, therefore, the learned judge had no power to revive the darkhast by, in effect, setting aside the order of his predecessor. in this connection he referred to the case of.....
Judgment:

Rajadhyaksha, J.

1. This is an appeal against an order passed by the First Class Subordinate Judge, Belgaum, restoring to file a darkhast which had been dismissed for want of prosecution on March 31, 1943. The facts of this case are not in dispute.

2. A Darkhast No. 184 of 1940 was filed by the respondent decree-holder in execution of a money decree that he had obtained in Civil Suit No. 347 of 1937. After the institution of the darkhast, the decreeJholder obtained an order for attachment and sale of the property in the hands of the judgment-debtor. On December 3, 1942, the Court ordered a sale proclamation to issue. Thereupon the appellant-judgment-debtor produced a certificate, exhibit 113, under Section 10 of the Watan Act issued by the District Deputy Collector, to the effect that the property was watan property and was not, therefore, liable to be attached and sold in execution of the decree. This certificate was produced on March 15, 1943, and was shown to the pleader of the decree-holder. When the matter came up before the Court on March 30, 1943, the Court in view of the certificate, exhibit 113, ordered that the direction for sale be set aside and attachment be removed. But the decree-holder's pleader was also! asked to take any further steps if he wished to do so by the next day. On March 31, 1943, the decree-holder intimated to the Court that no further step was sought, whereupon the learned Judge proceeded to pass an order dismissing the darkhast. It appears, however, that the decree-holder went in appeal to the Collector against the order of the District Deputy Collector declaring that the property was not liable to be attached and sold in execution of the decree. The Collector, on September 1, 1943, set aside the order of the District Deputy Collector and held that the life interest of the judgment-debtor was liable to be proceeded against and sold. After this, on September 11, 1943, the decree-holder filed an application before the learned Judge praying that the darkhast which had been dismissed on March 31, 1943, be revived. The learned Judge thereupon called back the darkhast from the record and directedthat it should be proceeded with from the stage which it had previously reached. He passed an order, for the issue of a sale warrant and proclamation. The defendant-judgment-debtor then filed an application, exhibit 145, dated November 17, 1943, contending that after the darkhast had been finally decided and after the attachment levied on the property had been raised, the said darkhast could not be legally revived and that, therefore, it was incumbent on the darkhastdar to file a fresh darkhast in 'accordance with law and to ask for reattachment of the lands before bringing them to auction sale. On this, the learned Judge passed an order that-

the dismissal of the darkhast was not on account of any default on the decree-holder's part but only because the certificate under Section 10 of the Watan Act had beenl produced by the judgment-debtor. That certificate having been set aside by a competent authority, the decree-holder quite properly moved the Court to cancel the order of dismissal of the darkhast and to proceed with it from the stage which it had previously reached.

3. The learned Judge held that it was the duty of the Court to redress the wrong and rectify what turned out to be an error. Exercising his power under Section 151 of the Civil Procedure Code, the Court held that the order passed on October 11, 1943, reviving the darkhast was right and rejected the contentions of the judgment-debtor. It is against that order that this: appeal has been filed.

4. It has been contended by Mr. Coyajee for the appellant that the order of March 31, 1943, dismissing the darkhast was a decree and that, therefore, the learned Judge had no power to revive the darkhast by, in effect, setting aside the order of his predecessor. In this connection he referred to the case of VijayadasHanumantdas v. Shekharappa Anantappa : (1941)43BOMLR727 It is true that the learned Judge in that case held that ' the word default in Order XXI, Rule 57, of the Civil Procedure Code, in so far as it applies to the decree-holder, means default not merely in the sense of non-appearance or non-payment of the process fees, but includes the case of non-prosecution as well.' Following that ruling, it could be held in this case that the darkhast was dismissed on account of the default of the decree-holder. But the case does not decide anything as to the power of the Court to revive a darkhast which had been dismissed for default on the part of the decree-holder. The only point that was then decided was whether, if there was a dismissal of the darkhast on account of defaultof the decree-holder, the attachment automatically came to an end, and it was held that itdid come to an fend and that it was not within the power of the Court to order that the attachment should continue. The point that we have to decide in this case did not arise and was not decided. The learned counsel further argued that it was not competent for the learned Judge to exercise his inherent jurisdiction under Section 151 of the Civil Procedure Code inasmuch as thedecree-holder had other remedies open to him, such as, asking for the review of the order or, if necessary, filing a new darkhast. But there have been numerous authorities for holding that the Judge is not precluded from exercising his inherent power under Section 151 of the Civil Procedure Code merely because there are other remedies open to the decree-holder. In the case of Bholu v. Ram Lai I.L.R. (1921) Lah. 66 it was held that (p. 67) ' if the Court has an inherent power to pass an order of dismissal, there is absolutely no reason why it should not possess a similar power to set aside the dismissal if the ends of justice render it necessary to do so.' The learned Chief Justice goes on to observe (p. 67) :

It is contended that a decree-holder, whose application for execution has been dismissed for want of prosecution, has got an alternative remedy and is entitled to make a second application for execution ; and that he should not, therefore, be allowed to invoke the inherent power of the Court to A.I.R. (1939) Lah. 223 set aside an order of dismissal. There may, however, be cases, and indeed this is one of such cases, in which a second application may be barred by limitation; and if we accept the contention, the decree-holder would in such cases have no remedy open to him. Be that as it may, we see no reason in principle for holding that the merecircumstance that an alternative remedy may be open to the decree-holder should prevent the Court from exercising its inherent jurisdiction if the circumstances of the case require its exercise.

5. It would be noticed that the learned Judges came to that conclusion in spite of the fact that a second application for execution was barred, and in a sense by the passing of that order the judgment-debtors lost a valuable right. Even so the High Court held that the old application for execution could be revived. In the present instance, the decree-holder is not barred by limitation from filing a second application inexecution, and we see no objection in allowing the revival of the darkhast as it could not be said that the judgment-debtor had acquired any right which would be prejudiced by having recourse to the Court's inherent jurisdiction under Section 151 of the Civil Procedure Code. The ruling in the case referred to above was followed by the same Court in the case of Acharji Bibi v. Swami SheshSahm A.I.R [1939] Lah. 233 where the principle, that ' the Court had inherent power under Section 151, Civil Procedure Code, to restore an appliaation in execution proceedings which had been dismissed in default, notwithstanding the fact that the applicant had an alternative remedy open ' was affirmed. A similar view was taken by the Madras High Court in the case of v. Swamigal v. K. Goundan A.I.R. (1942) Mad. 718 That was a case where the purchaser at the auction sale apprehended obstruction by the defendant and wanted time to take possession of the property with the necessary help of the police. The Court instead of postponing the hearing of the petition to some other date, dismissed it, and it was held by the High Court that ' since that was not a case in'which the party was at fault, dismissal of the petition must be considered to be an order adjourning the petition sine die till the petitioner took steps.' In a full bench case of the Madras High Court in Sundaramma v. Abdul Khadar I.L.R. (1932) Mad. 490 it was held that- ' the dismissal of an execution application for non-payment of batta was proper and final and such an application cannot be revived. In order to entitle an application to be treated as one in continuation of or to revive a former application there should have been no final disposal or there should have been a1 wrong dismissal on account of some obstacle which then existed but which was subsequently removed.

6. Mr. Justice Sundaram Chetti in his judgment referred to the case of Raghunandun Pershad v. Bhugoo Loll I.L.R. (1889) Cal. 268 and observed (p. 505):-

The interruption to the execution proceedings must have been due to an intermediate order which was afterwards set aside, or the execution proceedings must have been rendered infructuous by some such obstacle, and the interruption to the execution should not have been occasioned by any fault or laches of the applicant.

7. It seems to us that these observations are in point and apply to the case before us. In this case the only obstacle which came in the way of the execution proceedings was the order of the District Deputy Collector under Section 10 of- the Watan Act, and it was this order that rendered the execution proceedings infructuous. This obstacle having been subsequently removed by the order of the Collector, there was no reason why the original execution proceedings should not be revived and proceeded with from that stage. The interruption to the execution was not occasioned by any fault or laches on the part of the decree-holder. In the case of Palaniappa Chettiar v. Rama-swamServai : AIR1937Mad582 an application for execution was dismissed when it was found that some contention had been taken by the judgment-debtors that their property was not liable for being proceeded against. A suit,had been filed for a partition at the time of the dismissal of the darkhast. Though the partition suit was pending, the executing Court without going into merits dismissed the execution application, holding; that the purchaser had failed to prove that the resistance was caused by the sons at the instance of the father. The partition suit was subsequently decided, and it was therein held that the sons were bound by the mortgage and the auction sale. There- upon the decree-holder asked for revival of the earlier execution application, and it was held by the learned Judge that as the prior execution application was dismissed without going into the merits in view of the partition suit and on the assumption that the sons were not bound by the decree, which assumption (was later held to' be erroneous, the later petition was to be treated as a revival of the earlier petition and was therefore not barred by the dismissal of the earlier petition. The reasoning of that case applies to the facts before us, and we are of opinion that it was competent for the learned Judge to revive the earlier application for execution in view of the fact that the only obstacle in execution, viz. the order of the District iDeputy Collector had beensubsequently set aside by the order of the Collector.' Mr, Coyajee also referred us to the case of Channappa Girimallappa v. Shankardas Vishnudas : AIR1942Bom282 in which an application was made in 1938 to revive a darkhast of 1925 in execution of a decree of October 11, 1924. The darkhast of 1938 was clearly barred by limitation, and a prayer for revival of the earlier darkhast would have seriously prejudiced the rights of thejudgment debtors. It was, therefore, held that the darkhast of 1938 could not be regarded as the revival of the darkhast of 1925. The reasons which induced the Court in that case to reject the prayer for considering the darkhast of 1938 as a revival of the darkhast of 1925 do not obtain in the present case. In the case beforeus, the earlier darkhast was dismissed on March 31, 1943 and the application dated September 11, (1043, for the revival of the darkhast was well within three years of the disposal of the earlier darkhast. No rights of the judgment-debtor could be prejudiced by permitting a revival of the darkhast in exercise of the inherent power of the Court under Section 151 of the Civil Procedure Code. We are, therefore, of opinion that in view of the current of authorities, the learned Judge did not exercise his discretion wrongly in permitting the revival of the darkhast under Section 151 of the Civil Procedure Code. The appeal therefore fails and must be dismissed with costs.


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