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Bhurchand Hunsraj Doshi Vs. Vira Champa Khachar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 439 of 1911
Judge
Reported in(1912)14BOMLR787; 17Ind.Cas.142
AppellantBhurchand Hunsraj Doshi
RespondentVira Champa Khachar
DispositionAppeal allowed
Excerpt:
.....for execution-interest calculated up to date of application-execution proceedings transferred to collector-collector paying the amount mentioned in application and returning the decree as satisfied-court ordering to proceed with execution till interest over decretal amount up to the date of realisation paid over to the decree-holder--jurisdiction.;the plaintiff obtained a money-decree against the defendant, which awarded also running interest on the decretal amount up to the date of its realisation. in his application to execute the decree, the plaintiff calculated interest over the decretal amount up to the date of the application ; and prayed for recovery of the total amount so made up the execution proceedings were transferred to the collector. the collector carried on the..........with the functions of the collector as the authority invested with jurisdiction to see that the decree is satisfied. the authority is given for the purpose of enabling the collector to determine the best mode or modes of satisfying the decree, whether it is to be satisfied by management by the collector himself of the land attached in execution of the decree, or whether it is to be by its sale or letting. so far, therefore, as the machinery necessary for the satisfaction of the decree is concerned, the collector is the sole authority. the discretion is his and no civil court can interfere with that discretion. but that discretion does not extend to any jurisdiction in the collector to determine whether the decree itself has been satisfied or not. the latter jurisdiction is the civil.....
Judgment:

Chandavarkar, J.

1. The District Judge has taken an erroneous view of the jurisdiction of the Collector or rather the Talukdari Settlement Officer, who exercised the powers of Collector under Section 320 of the old Code of Civil Procedure (Act XIV of 1882), and under Sections 69 and 70 of the present Code of Civil Procedure (Act V of 1908), in respect of the execution of the decree concerned in this case. The Chapters in which these sections respectively occur deal with the functions of the Collector as the authority invested with jurisdiction to see that the decree is satisfied. The authority is given for the purpose of enabling the Collector to determine the best mode or modes of satisfying the decree, whether it is to be satisfied by management by the Collector himself of the land attached in execution of the decree, or whether it is to be by its sale or letting. So far, therefore, as the machinery necessary for the satisfaction of the decree is concerned, the Collector is the sole authority. The discretion is his and no Civil Court can interfere with that discretion. But that discretion does not extend to any jurisdiction in the Collector to determine whether the decree itself has been satisfied or not. The latter jurisdiction is the Civil Court's. It is that Court alone which is competent to determine the question judicially.

2. But it is argued in support of the decree of the lower Court appealed from that in any case the decree must be upheld because the determination by the Talukdari Settlement Officer that the decree was satisfied is perfectly consistent with the facts of the case. And the facts relied upon shortly are, that the present appellant did not by his darkhast, sent to the Collector for execution, ask for any running interest allowed to him by the decree, but he asked merely for execution in respect of the principal amount allowed by the decree and interest up to the date of the darkhast. Although that is so, if we have regard solely to the prayer in the darkhast, we must also have regard to the fact that the darkhast could not have been presented by the appellant in any other form. It was not necessary for him to ask for running interest because the law itself makes provision for its award in execution when the decree has been sent to the Collector. When it is so sent the Collector has to see, not that it is partially satisfied, but that it is wholly satisfied. When interest awarded by the decree up to the date of satisfaction is running from day to day, the decree-holder being unable at the date of his darkhast to specify the day up to which interest can be calculated, it is the Collector who has to take into account the whole of the period, present and future, and he cannot return the decree to the Civil Court as satisfied till after the whole amount including interest awarded by the decree has been paid.

3. Section 7(1)(b) of the third Schedule of the Code of Civil Procedure 1908, provides that where the amount to be recovered and the property available have been determined as provided in paragraph 4 or paragraph 5, the Collector may, if it appears that the amount with interest (if any) in accordance with the decree may be recovered without such sale, raise such amount and interest. According to the plain language, then, of this section, the Collector has to take into account the amount, with the whole of interest awarded by the decree. That includes not merely interest up to the date of the darkhast, but also interest which runs according to the decree thereafter.

4. On these grounds the decree appealed from must be reversed and that of the Subordinate Judge restored with costs both of this appeal and of the appeal in the District Court on the respondents.

Batchelor, J.

5. I am of the same opinion. The most that Mr. Mehta could urge for the respondents in this case was that the appellant in his darkhast of 1895 had not specifically prayed for interest up to the date of payment. That is true. He had asked in terms only for interest up to the date of his application, but in his application he had specifically referred to that clause in the decree which ordained that interest should run up to the date of realization. And under Section 7(1)(b) of the third Schedule of the Civil Procedure Code it appears to me that despite the appellants' omission to make the particular claim for further interest it was the Collector's duty to arrange for the satisfaction of the decree with such interest as the decree itself awarded, that is to say, with running interest up to the date of payment. I agree, therefore, that this appeal should succeed.


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