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Bai Diwali Vs. Girdhar Govindram Patel - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 685 of 1907
Judge
Reported in(1908)10BOMLR577
AppellantBai Diwali
RespondentGirdhar Govindram Patel
Excerpt:
dekkhan agriculturists' relief act (xvii of 1879), section 20-decree-execution-court's power to grant instalments-civil procedure code (act xiv of 1882), section 13-res judicata.; a court has power in execution proceedings to grant instalments in the payment of a decretal debt, under section 20 of the dekkhan agriculturists' relief act 1879, even where the instalments, are refused at the time of passing of the decree. - .....terms cannot apply, and though that section is not exhaustive the rule on which it is founded can have no application here, because section 20 of the dekkhan agriculturists' relief act contemplates that even when a decree has been passed which does not allow of instalments, the court shall have power to allow instalments in execution.3. the order must be set aside and the case must go back for disposal by the learned judge who must consider whether apart from the ground on which he has proceeded, the instalment should or should not be granted.4. costs of this appeal will abide the result.
Judgment:

1. The decision of the District Court proceeds on the assumption that the doctrine of res judicata has some application to the case. But that is not so.

2. Section 13 of the Civil Procedure Code from its very terms cannot apply, and though that section is not exhaustive the rule on which it is founded can have no application here, because Section 20 of the Dekkhan Agriculturists' Relief Act contemplates that even when a decree has been passed which does not allow of instalments, the Court shall have power to allow instalments in execution.

3. The order must be set aside and the case must go back for disposal by the learned Judge who must consider whether apart from the ground on which he has proceeded, the instalment should or should not be granted.

4. Costs of this appeal will abide the result.


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