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Birdichand Dhondiram Marwadi Vs. Badesaheb Bahamiya - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 562 of 1925
Judge
Reported in(1926)28BOMLR1322
AppellantBirdichand Dhondiram Marwadi
RespondentBadesaheb Bahamiya
DispositionAppeal allowed
Excerpt:
.....act (ix of 1908), schedule i, article 182-decree, execution of- application for attachment of the property of the deceased in the hands of his legal representatives-step-in aid of execution.; the plaintiff obtained a decree against the estate of a deceased person in the hands off his widow and children (defendants). in 1920 he applied for execution of the decree on june 4, 1923, he made another application for execution of the decree and prayed for attachment of moveable property of the deceased, as he did not annex with this application an inventory as required by order xxi, rule 12, the application was dismissed. he then made another application for execution of the decree. both the lower courts held that the application of 1923 was, in the absence of an inventory, not in accordance..........law within the meaning of article 182 of the first schedule of the limitation act, and that the present darkhast was, therefore, barred by limitation,2. the decree in question, however, fell under section 52 of the code of civil procedure, and, in our opinion, the property, if any, which could be attached, was property in the hands of the judgment-debtors, from the estate of the deceased. the judgment-debtor in the present case was not the deceased but the widow and children. therefore, the property, whatever it was, which was sought to be attached, could not be said to be the property belonging to, but not in the possession of, the judgment-debtor, within the meaning of order xxi, rule 12, civil procedure code.3. it was pointed out by us in the argument that the darkhast of 1923 has.....
Judgment:

Fawoett, J.

1. The question in this appeal is whether the present darkhast filed by the plaintiffdecree holder-appellant is barred by limitation as both the lower Courts have held. The decree in question was obtained by the appellant against the widow and children of one Baba Miya deceased and was passed against them, with the limitation that the decretal amount should only be recoverable from the estate of the deceased Baba Miya in the hands of the defendants On June 4, 1923, the appellant brought a darkhast No. 454. of 1923, which was rejected on the ground that an inventory under Order XXI, Rule 12, was necessary and was not annexed to the darkhast application, Both the lower Courts have held that the darkhast of 1923 was, in the absence of such an inventory, not in accordance with law within the meaning of Article 182 of the First Schedule of the Limitation Act, and that the present darkhast was, therefore, barred by limitation,

2. The decree in question, however, fell under Section 52 of the Code of Civil Procedure, and, in our opinion, the property, if any, which could be attached, was property in the hands of the judgment-debtors, from the estate of the deceased. The judgment-debtor in the present case was not the deceased but the widow and children. Therefore, the property, whatever it was, which was sought to be attached, could not be said to be the property belonging to, but not in the possession of, the judgment-debtor, within the meaning of Order XXI, Rule 12, Civil Procedure Code.

3. It was pointed out by us in the argument that the darkhast of 1923 has not been placed before us. Neither side apparently put it in, Beyond the single fact that an inventory under Order XXI, Rule 12, Civil Procedure Code, was not annexed, which the Subordinate Judge thought necessary, we know nothing about that darkhast, We are of opinion, therefore, that Order XXI, Rule 12, had no application to the darkhast of 1923, and, if so, there is nothing toshow that it was not a step-in-aid of execution within the meaning of Article 182, First Schedule. We cannot agree with the reasoning of the lower appellate Court in this respect We agree with the observations of Batchelor J. in Bando Krishna v.Narasimha I.L.R. (1912) 37 Bom. 42. It is not every infructuous darkhast which fails as atep-in-aid of execution for the purposes of limitation. Nor is any and every defect necessarily fatal. In the present case it is not necessary for us to go further into the matter. Order XXI, Rule 12, had no application and no inventory was necessary.

4. As to the desirability of such an inventory in the case of decrees such as the present, it is not for us to express an opinion. The District Judge may be right in thinking an amendment of law in that sense advisable.

5. The appeal is allowed, the orders of the lower Courts set aside, and the darkhast application sent back to the file of the Subordinate Judge to be disposed of according to merits.

6. Costs in this Court and the District Court on the respondent. Coats in the Subordinate Judge's Court will follow the event,


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