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Gulappa Rudrappa Ershetti Vs. Erava Basanagowda Patil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 776 of 1920
Judge
Reported in(1921)23BOMLR1013
AppellantGulappa Rudrappa Ershetti
RespondentErava Basanagowda Patil
DispositionAppeal allowed
Excerpt:
.....decree should be made final before it could be executed. accordingly, the plaintiff applied for a final decree in 1912, 1913 and february 1915, but all these applications were dismissed for one reason or another. in september 1916, he having again applied to execute the decree :-;(1) that the applications of 1912 and 1913, in which the plaintiff applied for a final decree, were steps-in-aid of execution ;;(2) that the application of 1907, which had been accepted by the court, ii though out of time, started a fresh period of limitation.;desaiappa v. dundappa (1919) 22 bom. l.r. 76 - - on their failure to appear, an order absolute for sale was made on the 2nd october 1907, but as the plaintiff took no further steps in paying necessary fees, the darkhast was eventually dismissed. that..........section 88 of the transfer of property act was to apply for execution, and not to apply for a final decree. but if time be taken to run against the decree-holder from the date of the decree, and not from the end of the six months, the period allowed for payment then that darkhast was presented more than three years after the decree. but no objection was taken by the court, and an order was made on the darkhast that the property should be sold.3. then, on the 13th june 1910, the plaintiff filed a darkhast praying for the sale of the property, but that darkhast was dismissed on the ground that the new code of civil procedure required that the preliminary decree in a mortgage suit should be made final, and the plaintiff had not applied for a final decree. that clearly was a wrong.....
Judgment:

Norman Macleod, Kt., C.J.

1. The plaintiff applied for execution of the decree in Suit No. 261 of 1903, which was passed on the 25th February 1904 in a mortgage suit giving the usual six months' time for payment under Section 88 of the Transfer of Property Act. The present Darkhast was filed on the 7th September 1915; and the decision now appealed from was dated 10th July 1920. At that time the decision in Desaiappa v. Dundappa (1919) 22 Bom. L.R. 76 had not been reported; therefore, there was some excuse for the order dismissing the Darkhast.

2. The plaintiff sought for execution of his decree by a Darkhast filed on the 12th June 1907. Notice was issued to the defendants. On their failure to appear, an order absolute for sale was made on the 2nd October 1907, but as the plaintiff took no further steps in paying necessary fees, the Darkhast was eventually dismissed. Before the present Civil Procedure Code came into force, the proper procedure in the case of a decree under Section 88 of the Transfer of Property Act was to apply for execution, and not to apply for a final decree. But if time be taken to run against the decree-holder from the date of the decree, and not from the end of the six months, the period allowed for payment then that Darkhast was presented more than three years after the decree. But no objection was taken by the Court, and an order was made on the Darkhast that the property should be sold.

3. Then, on the 13th June 1910, the plaintiff filed a Darkhast praying for the sale of the property, but that Darkhast was dismissed on the ground that the new Code of Civil Procedure required that the preliminary decree in a mortgage suit should be made final, and the plaintiff had not applied for a final decree. That clearly was a wrong decisions But the Plaintiff was entitled to accept the order of the accordingly, on the 7th October 1912, he applied for a final decree, but that application was dismissed for non-payment of process fees. He made a similar application on the 7th November 1913, but withdrew from it before any notice of it was served on the defendants. Another Darkhast was filed on the 26th February'1915 which was again dismissed for non-payment of process. Then this Darkhaat was filed on the 7th September 1915.

4. The only question which, ho far as 1 can see, now arises is, whether the Darkhasts of October 1912 and November 1913 in which the plaintiff applied for a final decree were steps-in-aid of execution. I fail entirely to see why the Court should not consider that these were stops-in-aid, for the plaintiff was endeavouring to get an order which he had been told to get when the previous Darkhast was dismissed. It is to my mind perfectly clear, and follows from the decision in Deaaiappa v. Dundappa (1919) 22 Bom. L.R. 76, that a Darkhast which is accepted by the Court, although it is out of time, starts a fresh period of limitation. The appeal, therefore, must be allowed and the Darkhast must proceed with costs throughout.

Shah, J.

5. I agree. I desire to add a word with reference to the argument urged by Mr. Parulekar that the order on the application of the 13th June 1910 is final and binding on the parties. But the order from its very nature was operative only as regards that Darkhast, as the Darkhast was dismissed on the ground that an application for making the decree final was necessary. The point now is not whether it is necessary that the decree which was passed prior to the Code of 1908 requires to by made final or not, but whether the execution of that decree is time-barred. Even though that order may be taken to be final so far as it affected the Darkhast then under consideration, it has no effect, so far as I can see, upon the question whether the present Darkhast is time-barred or not. For the purpose of determining that question, it is clear that all the previous applications have to be considered. They were steps-inlaid of execution. The Darkhast of 12th June 1907 was held, by the Court then to have been made in time: and after that adjudication it is not open to the Court now to consider the question whether it was in time or not.


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