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Gumanji Dhiraji Marwadi Vs. Vishwanath Parbhu Hingmire - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 744 of 1920
Judge
Reported in(1921)23BOMLR1072
AppellantGumanji Dhiraji Marwadi
RespondentVishwanath Parbhu Hingmire
DispositionAppeal allowed
Excerpt:
.....of the decree. its only functions are to carry out the directions of the court. - - that if they failed to do so, then the amount should be recovered by sale of the property no......decision would affect the interest of the first defendant, and it is certainly remarkable that the appellate judge should not have noticed that, and should not have insisted upon having defendant no. 1 added a party respondent. however the fact remains that without hearing the first defendant the appellate court varied the decree of the trial court in a way which affected the interests of the first defendant. the plaintiff sought execution of the decree, when the first defendant contended that as he was not a party to the appeal it could not bind him. and he was therefore, entitled to insist upon the plaintiff first recovering his debt from the sale proceeds of property no. 3. the subordinate judge, however, directed execution should proceed and that the darkhast should be sent to the.....
Judgment:

Norman Macleod, Kt., C.J.

1. One Parbhu mortgaged four properties to Gumanji Dhiraji for Rs. 275 on the 15th September 1903. Gumanji filed a suit (No. 340 of 1914) against Parbhu's eon and four others to recover Us. 539-8-0 due under the mortgage and obtained a decree which provided that defendants Nos. 3 to 5, who apparently made themselves personally responsible for the debt, should pay the amount claimed with costs of the suit, of the plaintiff within six months; that if they failed to do so, then the amount should be recovered by sale of the property No. 3; and that in case the amount realized by the sale of the said property should be found insufficient, then the plaintiff was at liberty to seek relief under Section 15B, Clause (2), of the Dekkhan Agriculturists' Relief Act for bringing the other properties to sale for the satisfaction of the deficit amount. The second defendant was impleaded because the debt was said to have been incurred for his benefit by the father of defendant No. 1, and his property No. 3 was primarily made liable for the decretal amount.

2. We have not got the decision of the Subordinate Judge who tried that suit before us, and so we are unable to say why property No. 8 belonging to defendant No. 2 was primarily made liable for the decretal amount and not equally together with other properties which Parbhu had mortgaged. The second defendant appealed from the decree making plaintiff the only respondent -~~' and the appellate Court amended the decree by setting aside the order of the lower Court against defendant No. 2 and against property No. 3. The reason for that decision was that no part of the mortgage debt had been raised for the benefit of the sesond defendant; therefore the mortgage was not binding on property No. 3.

3. Naturally that decision would affect the interest of the first defendant, and it is certainly remarkable that the appellate Judge should not have noticed that, and should not have insisted upon having defendant No. 1 added a party respondent. However the fact remains that without hearing the first defendant the appellate Court varied the decree of the trial Court in a way which affected the interests of the first defendant. The plaintiff sought execution of the decree, when the first defendant contended that as he was not a party to the appeal it could not bind him. And he was therefore, entitled to insist upon the plaintiff first recovering his debt from the sale proceeds of property No. 3. The Subordinate Judge, however, directed execution should proceed and that the Darkhast should be sent to the Collector for sale of the property.

4. In appeal to the Assistant Judge that order was varied. The effect of the order passed was that property No. 3 should be valued and that value should be deducted from the decretal amount and that execution should proceed against the other properties only to the extent of the balance. That certainly would tend to most extraordinary results. If the value of property No. 3 was more than the decretal amount, the result would be that the plaintiff would lose the whole of his money. The learned Judge seems to rely upon the decision in Gajraj Mati Tiwarin v. Siuami Nath Rai. I.L.R (1916) All. 13. But the facts there were entirely different. The appellant before the Court had a decree in the trial Court passed against her ex parte. Her sons who were defendants with her appealed, but they did not make their mother a party to the appeal. The mother, twelve years after the decree of the High Court, tiled an application in the Court V of the Subordinate Judge alleging that she had no knowledge of the suit and praying that the ex parte decree should be set aside. The Subordinate Judge held that as the decree had been confirmed by the High Court, that Court only had power to entertain the application and consequently rejected it. The High Court decided that the proper Court to which the application should be made was the Court which passed the decree and not the Court which modified that decree or dealt with it in appeal. That was the only point, so far as I can see, which was decided in that case, and it is no authority whatever for the decision of the learned Assistant Judge in this case. Applying the decision in that case, the first defendant had a grievance againts the appellate Court which decided an appeal which was against his interest without hearing him, and he should then have applied to that Court to set aside the order and deal with the appeal afresh after hearing his contentions. As the first defendant did not apply to the appellate Court, then it is quite If clear that the Court executing the decree could not entertain any application to alter the terms of the decree. We have more than I once decided that it is not for the execution Court to enter into the merits or demerits of the decree. Its only functions are to carry-out the directions of the Court. Therefore as the first defendant had taken no steps to gat the appellate order set aside, the only decree that could be executed was the decree which is now before us which directs that the properties other than property No. 3 should be sold in default of payment of the decretal amount. The appeal, therefore, must be allowed and the order of the Subordinate Judge restored with costs throughout.

Shah, J.

5. I agree.


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