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Sakharchand Bhukandas Gujarathi Vs. Punju Chintaman Wani and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberA.F.A.D. No. 910 of 1964
Judge
Reported inAIR1973Bom148; (1972)74BOMLR709
ActsCode of Civil Procedure (CPC), 1908 - Sections 96; Limitation Act, 1963 - Schedule - Article 136
AppellantSakharchand Bhukandas Gujarathi
RespondentPunju Chintaman Wani and ors.
Appellant AdvocateA.T. Patil, Adv.
Respondent AdvocateM.R. Kotwal and ;V.S. Kotwal, Advs.
Excerpt:
darkhast -- darkhast disposed of without fault of decree-holder -- subsequent darkhast by decree-holder whether a continuation of previous darkhast.;in a darkhast filed in 1929 by a decree-holder against the judgment-debtor, the latter's three survey numbers were attached and brought to sale. another decree-holder in 1932 filed a darkhast against the same judgment-debtor and attached another survey number and claimed rateable distribution of the aforesaid three survey numbers. this darkhast was however disposed of without any fault of the decree-holder. in a subsequent darkhast filed in 1942 by the latter decree-holder, before the darkhast filed in 1929 was disposed of, he prayed that the above three survey numbers should be attached and sold and the proceeds rate-ably distributed. on the..........the appeal of the judgment-debtors and set aside the order of the trial court and dismissed the decree-holders' darkhast no. 942 of 1942. the appellant obtained a money decree in civil suit no. 487 of 1922 on 19-9-24. he filed several darkhasts from time to time. in 1929 some other decree-holder filed darkhast no. 929 of 1929 against the present judgment-debtor for executing his decree. this was with a prayer to sell the judgment-debtor's survey nos. 25/1, 32/1 and 33 situate at village jirali, district jalgaon. in this darkhast survey nos. 25/1, 32/1 and 33 situate attached and brought to sale. the present appellate-decree-holder filed darkhast no. 745 of 1932 claiming to attach s. no. 55 of the judgment-debtor and for also retable distribution of s. nos. 25/1, 32/1 and 33 in.....
Judgment:

1. This appeal is directed against the order passed by the learned Assistant Judge, Dhulia, who allowed the appeal of the judgment-debtors and set aside the order of the trial Court and dismissed the decree-holders' darkhast No. 942 of 1942. The appellant obtained a money decree in Civil Suit No. 487 of 1922 on 19-9-24. he filed several darkhasts from time to time. In 1929 some other decree-holder filed darkhast No. 929 of 1929 against the present judgment-debtor for executing his decree. This was with a prayer to sell the judgment-debtor's Survey Nos. 25/1, 32/1 and 33 situate at village Jirali, district Jalgaon. In this darkhast Survey Nos. 25/1, 32/1 and 33 situate attached and brought to sale. The present appellate-decree-holder filed darkhast No. 745 of 1932 claiming to attach S. No. 55 of the judgment-debtor and for also retable distribution of S. Nos. 25/1, 32/1 and 33 in darkhast No. 929 of 1929. Under Section 73 of the Civil Procedure No. 745 of 1932 was disposed of without any final order after realising part payment of the decree from the sale proceeds of S. No. 55 for no fault of the decree-holder.

2. The appellant then filed darkhast No. 942 of 1942 on 2-9-42 with which we are concerned in this appeal. He prayed there that Survey Nos. 25/1, 32/1 and 33 of the judgment-debtor should be attached and sold. There the point arose whether it was in continuation of his old darkhast No. 745 of 1932, which was disposed of for no fault of the decree-holder because the judgment-debtor had raised a contention that the darkhast was time-barred. The trial Court before whom darkhast No. 942 of 1942 proceeded held that it was not time-barred; that, on the other hand, it was in continuation of old darkhast No. 745 of 1932 and ordered that the other decree-holder should be given notices as to realised in the old darkhast should not be awarded to the present appellant. The judgment-debtor went in appeal. The learned appellate Judge allowed the appeal and remanded the record an proceedings back with a direction to the trial Court to find with a direction to the trial Court to find out whether S. Nos. 25/1, 32/1 and 33 were also the subject-matter of darkhast No. 745 of 1932. If the question of retable distribution of these survey numbers was also the subject-matter of the old darkhast then the instant darkhast with which we are concerned should be construed to be in continuation of the old darkhast. If that question was not the subject-matter in the old darkhast then the instant darkhast was time barred.

3. The trial Court on remand found that the three survey numbers were also the subject-matter in Darkhast No. 745 of 1932. Accordingly, therefore, the execution proceeded. There was an appeal against that order. The learned Assistant Judge, however, found that the order of the trial Court was not proper because according to him old darkhast No. 745 of 1932 of the decree-holder was disposed of on 24-6-1940 by attachment and sale of Survey No. 55 belonging to the judgment-debtor. He held that in view of this disposal the attachment of the three survey numbers in darkhast No. 929 of 1929 of the other decree-holder cannot come to the help of the appellant. It is in that view that he allowed the appeal and set aside the order of the trial Court.

4. The decree-holder, therefore, has come here in appeal. The first ground on which this appeal will have to be allowed is this : When the first Count before which the present darkhast was filed, held that the instant darkhast was in continuation of the old darkhast No. 745 of 1932, wherein it was requested that the assets of S. Nos. 25/1, 32/1 and 33 shall be ratably distributed, the judgment-debtor went in appeal. The first appellate Court allowed the appeal and remanded the papers back to the executing Court to find out again whether S. Nos. 25/1, 32/1 and 33 could be treated as attached in the old darkhast No. 745/1932. He also directed that if the answer to the first query by the executing Court was in the affirmative, then he should consider the instant darkhast within limitation and proceed to execute the darkhast. Admittedly there was no appeal against this order. Evidently, therefore, the order of the first appellate Court, when it remanded the case back to the executing Court directing it to treat the present darkhast in time if it came to the conclusion that S. Nos. 25/1/, 32/1 and 33 were treated as attached in the old darkhast has become final. When there was no appeal against the order of the appellate Court, in my view, another appeal again against the order of the executing Court which merely complied with the directions of the appellate Court when it remanded the case back cannot be tenable. When there was no appeal against the order of remand and the direction of the first appellate Court, it means that the order has become final and that was binding on both the parties. On this ground therefore the appeal of the judgment-debtor again to prolong the execution to the 1st appellate Court cannot be said to be tenable. But this appeal of the decree-holder will also have to be allowed on another ground. Both the Courts below have found as a finding of fact that darkhast No. 745 of 1932 of the decree-holder was disposed of without decree-holder's fault. The learned Civil Judge has observed that the record of the darkhast does not show that darkhast No. 745/32 was disposed of. The endorsement on the decree shows that the decree-holder was paid Rs. 475/- and odd. But the darkhast was disposed of although it was only partly satisfied. According to the learned Civil Judge the endorsement does not show that the decree-holder was in any way responsible for the disposal of this darkhast. Because of this he held that the present darkhast was in continuation of the old darkhast. Even in the order below darkhast No. 942 of 1942 the learned Civil Judge has observed that on going through the prayer clause in darkhast application No. 745 of 1932 he found that the property sought to be attached and sold in darkhast was S. No. 55. The rename of that darkhast also showed that there was a request for rateable distribution of the assets which were attached in darkhast No. 929 of 1929 in darkhast No. 745 of 1932. S. Nos. 25/1, 32/a and 33 which were attached in darkhast No. 929 of 1929 were requested to be ratably distributed to the present decree-holder as per darkhast No. 745 of 1932. He also observed after considering all the circumstances of the case that this rateable distribution after selling the properties was not done and the decree-holder in the instant darkhast is not responsible for the same. According to him there was no fault of the decree-holder. In view of this finding it is difficult for me to accept what the learned Assistant Judge says. According to him the important point that fell for decision was : 'what is the effect of the attachment in view of the fact that regular darkhast No. 745 of 1932 came to be disposed of on 23-6-1932 was disposed of, it cannot be held according to him that the attachment of the three survey numbers in the old darkhast would be of any help to the decree-holder. This observation in my view is untenable.

5. Section 73 of the Civil Procedure Code provides for the proceeds of execution sale to be ratably distributed among decree-holders. The relevant portion thereof says :

'Where assets are held by a Court and more persons than one have, before the receipt of such assets, made application to the Court for the execution of the decrees for the payment of money passed against the same judgment-debtor and have not obtained satisfaction thereof, the assets after deducting the costs of realization, shall be ratably distributed among all such persons.'

The object of this section is to provide a cheap and expeditious remedy for the execution of money-decrees held against the same judgment-debtor by adjusting the claims of rival decree-holders without the necessity for separate proceedings. The object is also to prevent unnecessary multiplicity of execution proceedings, to obviate, in a case where there are many decree-holders, each competent to execute his decree by attachment and sale of a particular property the necessity of each and every one separately attaching and separately selling that property. Since the instant darkhast can easily be said to be in continuation of previous darkhast No. 745 of 1942 (1932?) because it was disposed of without any fault of the decree-holder, the decree-holder is entitled to rateable distribution of the proceeds from the sale of S. Nos. 25/1, 32/1 and 33 of the judgment-debtor attached in darkhast No. 929 of 1929. The present darkhast was filed before darkhast No. 929 of 1929 was disposed of. The properties which were attached in darkhast No. 929 of 1929 can also be said to have been attached in darkhast No. 745 of 1932 as well as in the present darkhast.

6. In Chamava Rachaya v. Iraya Sangava Hiremath, : AIR1931Bom492 this Court has observed that where the execution of decree is ordered but owing to some interruption not attributable to the decree-holder himself, the order for execution cannot be carried out and subsequently on the removal of the interruption the decree-holder applies to carry out the previous order of execution, such an application is not a fresh application for execution but merely one to revive or to continue the previous execution proceedings. This view of our Court was also accepted by Full Bench of Allahabad High Court in Chhattar Singh v. Kamal Singh, : AIR1927All16 their Lordships held that where the execution of a decree has been suspended through no act or default of the decree-holder he has a right to ask the Court to revive and carry though the execution proceedings which have been suspended. It appears to me therefore that the trial Court was right in holding the present darkhast to be in continuation of the old darkhast and the learned Assistant Judge was wrong in setting aside that order. I, therefore, set aside the order passed by the Assistant Judge dated 24-12-1963 and restore the order of the darkhast Court, Joint Civil Judge, Amalner, dated 11-1-1962.

7. Appeal allowed with costs.

8. The record and proceedings shall go to the darkhast Court immediately for disposal according to law.

9. Appeal allowed.


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