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Bando Krishna Kanbargi Vs. Narsinha Konher Deshpande - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case Number First Appeal No. 105 of 1911
Judge
Reported in(1912)14BOMLR861; 17Ind.Cas.210
AppellantBando Krishna Kanbargi
RespondentNarsinha Konher Deshpande
DispositionAppeal allowed
Excerpt:
limitation act (xv of 1877), schedule-ii, article 179-decree-execution-darkhast to execute decree-'accordance with law'-relief claimed must be within the decree.;the plaintiff obtained a decree against the defendants, to execute which he presented to the court six darkhasts all within time. the subordinate judge held that the sixth, that is the lust, darkliast was not in time, inasmuch as the five preceding darkhasts were not ' in accordance with law' because every one of them sought relief or reliefs which, on considering the merits of the darkhast, the court could not have granted :-;reversing the order, that each of the five darkjiasts was by itself in order and therefore ' in accordance with law,' for it claimed relief granted by and therefore within the decree; and the question..........time, inasmuch as the previous five darkhasts were not in accordance with law, having each claimed relief or reliefs which it was not competent for the court to grant.2. the decree of which execution was sought by the darkhast in question had been passed originally on the 17th of november 1897; but it was amended on the 20th of january 1899. the amount payable under it was split up into four items. the first was a sum of rs. 575 for costs made payable at once. the second consisted of two sums of rs. 6,000 each ; the first sum was directed to be paid by the end of january 1908 ; in case of such non-payment, interest at 41/2 per cent was made to run on the sum from the 1st of november 1897 up to the date of payment. as to the second sum of rs. 6,000, the decree directed that interest.....
Judgment:

Chandavarkar, J.

1. This is an appeal from the decision of the Subordinate Judge, First Class, Belgaum, rejecting Darkhast No. 443 of 1908, presented by the appellant for execution of the decree in Suit No. 434 of 1897. The ground of rejection is that the darkhast is barred by time, inasmuch as the previous five darkhasts were not in accordance with law, having each claimed relief or reliefs which it was not competent for the Court to grant.

2. The decree of which execution was sought by the darkhast in question had been passed originally on the 17th of November 1897; but it was amended on the 20th of January 1899. The amount payable under it was split up into four items. The first was a sum of Rs. 575 for costs made payable at once. The second consisted of two sums of Rs. 6,000 each ; the first sum was directed to be paid by the end of January 1908 ; in case of such non-payment, interest at 41/2 per cent was made to run on the sum from the 1st of November 1897 UP to the date of payment. As to the second sum of Rs. 6,000, the decree directed that interest should run at 4 per cent from its date to the date of payment. The third item of the decree was a sum of Rs. 44,000 with Rs. 1,980 as interest thereon. The decree made Rs. 44,000 payable in forty-four years by instalments each of Rs. 1,000 a year. For satisfaction of Rs. 1,980 the judgment-debtor was directed to put the decree-holder in possession of certain lands; and it was provided that should the profits thereof fall short of the amount payable, the judgment-debtor should make up the deficiency by payment in cash. It was also provided in the decree that if the judgment-debtor should put the decree-holder in possession of only part of the lands, instead of the whole, the former should place the latter in possession of other lands so as to enable the decree-holder to obtain the full amount of interest. The decree then wound up with a final clause, making the whole of the mortgaged property therein mentioned security for the whole of the decretal amounts.

3. The first darkhast for execution was presented on the 18th of June 1898 ; the second on the 4th of January 1901; the third on the 13th of August 1901; the fourth on the 4th of August 1904; the fifth on the 26th of July 1907. These were all prima facie sufficient in law to keep the decree alive, because every application after the first was within three years of the last preceding application. And the present darkhast, having been presented on the 2nd of December 1909, is also prima facie in time, being within three years of its immediate predecessor, the darkhast of the 26th of July 1907.

4. But the Subordinate Judge has disallowed the darkhast now in dispute on the ground that all the previous darkhasts were not ' in accordance with law.' And they are not ' in accordance with law,' in the opinion of the Subordinate Judge, because every one of them sought relief or reliefs which, on considering the merits of the darkhast, the Court could not have granted.

5. In so construing the words ' applying in accordance with law to the proper Court for execution' the learned Subordinate Judge has put upon them a construction not warranted by their plain meaning. To apply for the execution of a decree in accordance with law is to apply in the manner provided for by the law relating to execution of decrees. And that law is embodied in the Code of Civil Procedure, which is for its purposes an exhaustive Code. Chapter XIX of the Code of 1882, which was in force when the first five darkhasts in the present case were presented, deals in sub-division B of the Chapter with u Application for Execution.' The provisions therein point out, first, who may apply for execution, and against whom the application may be made; secondly, what the contents of the application should be; and thirdly, what should accompany the application and in what cases. These are specific provisions and they must be the guide in determining whether, under Article 179 of Schedule II to the Limitation Act, a darkhast is ' in accordance with law.' Section 235 Clause (j) requires the application for execution to state 'the mode in which the assistance of the Code is required.' The last words of the clause ' as the nature of the relief sought may require ' show that even if the application seek relief not strictly claimable, yet the application would not be bad in itself. In the present Code (Act V of 1908) for ' sought ' we have ' granted,' i. e., granted by the decree. If a person other than one entitled to apply applies for execution, or if the person entitled applies for execution in a mode and for a relief outside the decree, the application is not in accordance with law for the plain reason that the decree of which execution is sought is not in reality the decree to which the application professes to relate but some other decree, one not existing and, therefore, incapable of execution according to law. The decree in such a case not existing, the application made as to it shares its fate and is treated as non-existent. Where, on the other hand, a decree gives certain reliefs, and the application for execution seeks some or all of them, it may be that, after going into the merits of the application and considering on evidence all the circumstances and equities of the case, the Court comes to the conclusion that the particular relief or reliefs sought shall not be granted. But that decision of the Court on the merits cannot affect the application for the purposes of the question whether it is by itself in accordance with law, provided it meets in substance the requirements of the Code of Civil Procedure or any other law relating to execution.

6. Where, again, the application asks partly for reliefs granted by the decree and partly for reliefs totally outside the decree, the application may be void as to the latter, but all the same it is good in law as to the former and therefore 'in accordance with law.'

7. In the present case the fallacy of the Subordinate Judge's reasoning is that he has held every previous darkhast to be not in accordance with law after examination of the merits and surrounding circumstances of the darkhast. That is going outside the darkhast, whereas all that the law (Article 179 of the Limitation Act) requires the Court to see for the purposes of limitation is whether the darkhast itself, whatever its merits on the evidence, is an application made in due conformity with the requirements of the law relating to execution.

8. According to the Subordinate Judge the 2nd darkhast is not in accordance with law because at that point of time the only relief which the decree-holder could claim under the decree was to bring the mortgaged property to sale, whereas, instead of seeking that relief, the decree-holder prayed for payment of Rs. 12,575. That might or might not be ; that was a question to be determined on a consideration of the circumstances extrinsic to the decree and depending on questions of default, and waiver. But because a decree-holder does not ask by his application for execution for that relief to which he is entitled under the decree in a certain event, and asks for a relief given by the decree until the happening of that event, it does not follow that he has applied for relief outside the decree and that, therefore, his application is not in accordance with law. It is this view which has substantially affected the Subordinate Judge's judgment with reference to each of the darkhasts. In the case of some of them, he has assigned the additional ground that the darkhasts were not accompanied by inventories-a purely technical defect which could not affect the question whether the darkhast itself was substantially in accordance with law.

9. Each of the first five darkhasts in the present case claimed relief granted by and, therefore, within the decree. Whether on a consideration of all the facts the Court could, in the events that had happened, grant the relief was a question for trial on the merits. But each application by itself was in order in that it sought relief which was in the decree.

10. Hence it was ' in accordance with law.'

11. On these grounds the decree appealed from must be reversed and the darkhast remanded to the lower Court for disposal on the merits according to law. The appellant must have the costs of this appeal from the respondent; other costs to be costs in the darkhast. At the fresh hearing in the Court below it will be open to the respondents to object to execution on any ground such, for instance, as that all or any of the items in the decree are time-barred. Parties will be at liberty to adduce evidence.

Batchelor, J.

12. The question before us is whether limitation in this case is saved by certain previous darkhasts under Clause 4 of Article 179 of the Limitation Act (XV of 1877). That clause provides a period of three years from the date of applying in accordance with law to the proper Court for execution. The only question before us is whether the earlier darkhasts were cases of applying in accordance with law or not. If they were cases of applying in accordance with law, then admittedly the present darkhast is saved. If I were free to decide the present question solely upon the authority of the words of the Statute, I should be inclined to think that those words had no reference to the application's likelihood of success or to the Court's competency to award any particular relief which had been prayed. As I understand the words, they are merely an adverbial qualification of the word ' applying,' and they seem to me to look only to the form or procedure of the application. I should think, moreover, that the words as they stand receive ample meaning by reference to Sections 235 and 236 of the Code of Civil Procedure of 1882, which sections prescribe the particulars to be furnished with an application for execution. It is worthy of remark that the critical words qualify the word ' applying.' It is not even an application, but it is the applying which must be in accordance with law, and the meaning seems to me to be wholly distinct from what would be conveyed if the words ran ' applying for execution in accordance with law.'

13. On the other hand if it is to be said that a decree-holder is not applying in accordance with law merely because he asks for something, which under the decree the Court cannot grant him, we are, I think, confronted, at least in all cases where the decree is complicated or intricate, with this difficulty that the question whether an applying is made according to law can only be decided by an adjudication of the application on its merits. I venture respectfully to doubt whether that is intended. If the applying complies with the forms and the procedure prescribed in that behalf, I should be disposed to say that the applying was in accordance with law, and not the less so because, on the merits of the application, whether for one reason or another, the application had to be refused ; nor do I think that the difficulty which I have mentioned is satisfactorily removed by any distinction between what appears on the face of the application and of the decree and what appears by a more careful consideration of those documents ; for in practice I should doubt whether it would be possible to maintain any such distinction. If, however, the decisions of this Court oblige us to reject this view of the meaning of the words in Clause 4 of Article 179 then, I am of opinion, that in this particular case the appeal should be allowed on the other ground that, as explained in my learned Colleague's judgment, the former applications asked for reliefs which were not wholly outside the decree.


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