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Baba Punjaji Gujar Vs. Kisan Narayan Wani - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 461 of 1933
Judge
Reported inAIR1938Bom18; (1937)39BOMLR1105
AppellantBaba Punjaji Gujar
RespondentKisan Narayan Wani
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 57-'decree-holder's default,' meaning of-not confined to non-appearance or non-payment of process fees, etc.-it includes non-prosecution as well.;the word 'default' in order xxi, rule 57, of the civil procedure code, 1908, in so far as it applies to the decree-holder, means default not merely in the sense of non-appearance or non-payment of process fees, etc, but includes the case of non-prosecution as well.;fateh din v. qutab din (1921) i.l.r. 3 lah. 7 dildar husain v. sheo narair (1918) i.l.r. 41 all. 157 and skibnath singh ray v. sheikh saberuddin ahmed (1928) i.l.r. 56 cal. 416, 421 approved. - - , but includes the case of non-prosecution as well......rule 57, would apply only if the court was unable to proceed with the execution by reason of the decree-holder's default and that there was no default of the decree-holder in the present case either by way of non-appearance or non-payment of any process fees, etc., but that he did not intend to proceed for the moment with1 his darkhast as he wished to prosecute another remedy, against the judgment-debtor. on the other hand, it is contended on behalf of the respondent that the word 'default' in this rule has a wider meaning i and the rule means that where the court is unable to proceed with the execution petition on account of some act of the decree-holder as opposed to an act, erroneous or otherwise, of the executing court or of its officer, or on account of an order of stay of a.....
Judgment:

Divatia, J.

1. This appeal involves a somewhat important point of law on which there does not seem to be any direct authority of our High Court The facts material to the point are shortly these:-The appellant-decree-holder obtained a money decree against his judgment-debtor and filed a darkhast to execute the decree. He had obtained an order for attachment before judgment and that attachment was continued in the execution proceedings. In the darkhast he asked for the recovery of the decretal amount by sale of some of the judgment-debtor's properties. Meanwhile the judgment-debtor had obtained a decree against a third person, and the appellant wishing to proceed first against that decree in favour of his judgment-debtor applied to the executing Court that the darkhast may be disposed of as he wished to realise his decretal amount by attachment and sale of the decree obtained by his judgment-debtor. Accordingly, the executing Court passed an order that the darkhast was disposed of. The appellant then filed another darkhast for attachment and sale of that decree, and it is said that he realised about Rs. 500 in that darkhast. Subsequently the appellant filed the present darkhast in which he asked the Court to execute his decree for the balance by sale of the very property which he had attached before judgment. Meanwhile the judgment-debtor had mortgaged that property to the present respondent. In the present appellant's darkhast proceedings the property was sold and the present appellant purchased the property subject to the respondent's mortgage. The appellant has now brought a suit against the respondent for a declaration that the mortgage is not binding against him inasmuch as it was created by his judgment-debtor at a time when the attachment of the mortgaged property must be deemed to have been subsisting in spite of the fact that his first darkhast was ordered to have been disposed of by the executing Court.

2. The lower appellate Court has held that the attachment could not be deemed to have been subsisting under Order XXI, Rule 57, of the Civil Procedure Code, and that therefore the mortgage is binding against the appellant. It is against that order that the present appeal has been preferred and it is contended on behalf of the appellant that the effect of the order of disposal of his darkhast was not that the darkhast was dismissed but that the executing Court treated the darkhast as being adjourned and therefore pending before that Court, and the attachment being thus subsisting he did not ask for further attachment of the property in his second darkhast, nor did the lower Court make any such order. It is further contended that Order XXI, Rule 57, would apply only if the Court was unable to proceed with the execution by reason of the decree-holder's default and that there was no default of the decree-holder in the present case either by way of non-appearance or non-payment of any process fees, etc., but that he did not intend to proceed for the moment with1 his darkhast as he wished to prosecute another remedy, against the judgment-debtor. On the other hand, it is contended on behalf of the respondent that the word 'default' in this rule has a wider meaning I and the rule means that where the Court is unable to proceed with the execution petition on account of some act of the decree-holder as opposed to an act, erroneous or otherwise, of the executing Court or of its officer, or on account of an order of stay of a superior Court, then the only order which the executing Court can pass under Order XXI, Rule 57, Civil Procedure Code, is an order of dismissal or of adjournment of the execution proceedings, and that if the order is one of dismissal, as in the present case it must be regarded to be, it is clear under that rule, that the attachment must have ceased. For this argument reliance is placed upon Fateh Din v. Qutab Din I.L.R. (1921) Lah. 7 Dildar Hu-sain v. Sheo Narairi I.L.R. (1918) All. 157 and certain observations in Namuna Bibi v. Rosha Miah I.L.R. (1911) Cal. 482 and Ganpatibhatta v. Devappa I.L.R. (1922) Bom. 942: 24 Bom. L.R. 442. It is however contended by the appellant that whether an execution petition is to be regarded as dismissed or adjourned, depends upon the facts and circumstances of each case, and that the facts of the present case show that the darkhast could not be regarded as having been dismissed for the appellant's default because he had not committed any default in the prosecution of the darfchast itself, but he wished' that the darkhast should temporarily cease. I find it difficult to accept this contention.

3. It is clear that in this case the order cannot be regarded as one of adjournment but must be taken to be one of disposal or dismissal, as the word used is nikal and not any vernacular equivalent of the word 'adjourned.' Therefore, the only question is whether the word 'default' in this rule is to be given the narrow meaning sought to be placed upon it by the appellant. I agree with the reasoning adopted in the cases of Fateh Din V. Qutab Din and Dildar Huscrin v. Sheo Narain that although the circumstances of each case have to be taken into consideration to see whether the default in a particular case was of the decree-holder or of the Court, the word ' default,' in so far as it applies to the decree-holder means default not merely in the sense of non-appearance or non-payment of process fees, etc., but includes the case of non-prosecution as well. This is also supported by the observations of Rankin C.J. in. Shibnath Singh Ray v. Sheikh Saberuddin Ahmed I.L.R. (1928) Cal. 416.

4. I am, therefore, of opinion that the decree of the lower appellate Court should be confirmed and the appeal dismissed with costs throughout.


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