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Gopalrao Krishnarao Sarnobat Vs. Hari Lakshman Patil - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberSecond Appeal No. 298 of 1928
Judge
Reported inAIR1930Bom65; (1929)31BOMLR1291; 122Ind.Cas.856
AppellantGopalrao Krishnarao Sarnobat
RespondentHari Lakshman Patil
DispositionAppeal allowed
Excerpt:
indian limitation act (ix of 1908), article 182, clause (6)-decree-execution-step-in' aid of execution-civil procedure code (act v of 1908), order xxi, rule 12- hit of ancestral morables in the hands of the sorts of the judgment-debtor-list not necessary-application to give time for furnishing the list is a step in-aid of n execution;the plaintiff obtained a money decree against a hindu father, and brought the sons on the record in execution proceedings. on november 7, 1928, the executing court ordered notices to issue to the both which notices were issued on november 17, 1922. the sons objected that they were wrongly described; and on november 23, 1922, the plaintiff gave an application to meet the objection. on january 23, 1923, the plaintiff applied 1928 for further time to pub in a..........step in aid of. execution : pachiappa aohari v. poojali seenan i.l.r(1905) . mad. 557 again as to notice, an application without notice may be a step in aid of execution : keshavlal bechar v. pitamberdas tribhuvandaaw. in the present case notices were ordered to issue but were not issued because of the refusal of the court to extend the time for the appellant to put in the inventory and the dismissal of the dark hast.4. apart, therefore, from the futile objection as to names on the part of the respondents i am of opinion that an inventory was not necessary. the darkhast was a step in aid of execution and so was the application of january 23, 1923. the present darkhast is, therefore, in time.5. the appeal is allowed and the order of the lower appellate court set aside, the trial court.....
Judgment:

Madgavkar, J.

1. The question in this appeal is, whether the darkhast by the plaintiff-appellant-decree-holder against the defendants-respondents is barred by limitation, The appellant obtained a decree on April 4, 1918, against Had Lakshman, the deceased father of the respondent who was a member of a joint Hindu family. In May 1921 the sons were brought upon the record in the Darkhast No. 188 of 1921. On November 7, 1922, the Court ordered notices to issue and on November 17, the notices were issued returnable on January 23, 1928, On November 23, 1922, the appellant gave an application (Exhibit 4) to meet the objections of two of the sons who had refused to accept service on the ground that their names were not properly described in the notice. The objections as to these names, as is clear from the order of that date, was futile. Thus, the son named Ram chandra had been described in the decree as Bamrao which is in fact synonymous. Similarly, Gajanan was called Gaja. The third son Trimbak had apparently an alias Rangnath. On the same day the application applied for further time to put in the list of movables which he had been ordered by the Court to put under Order XXI, Rule 12, Civil Procedure Code. That application (Exhibit 15) was rejected and the darkhaet was dismissed. The notices ordered on the application Exhibit 4 of that date were never issued. On January 22, 1926, the appellant filed the present darkast. Both the lower Courts held that it was barred by limitation. The decree-holder appeals.

2. It is argued for the appellant that the inventory of movables was not really necessary, and even if it was and the darkhast was defective, the application of January 23, 1923, was a step in aid of execution. It is contended for the respondents that the property not being in the possession of the deceased father, the inventory was necessary and, as was laid down in Nilkanth Laxman v. Baghu bin Mahadu (1918) I.L.R. 42 Bom. 553 under Article 182, Clause 6, time would begin to run only from the date of the issue of notice and not from the date of the order to issue notice.

3. Under Sections 50 and 53 of the Code of Civil Procedure, the ancestral movables in the possession of the respondents were liable in execution of the decree. It is not contended that there were other movables, and following the decision in Narayan Oanesh v. Sagunabai I.L.R(1924) . 49 Bom. 113 it is not clear that an inventory was necessary. Order XXI, Rule 12, Civil Procedure Code, applies to movables in the possession of third parties, In such a case when a third party has some movables belonging to himself and others belonging to the judgment-debtor, an inventory is obviously necessary before an attachment could be made. Whatever therefore the case with Mahomedan co-tenants where an inventory was held absolutely necessary as in Abdul Raft Khan v. Matda Bakhehi I.L.R.(1915) All 525 the facts of the present case are distinguishable, and am of opinion that an inventory was not necessary. Secondly, even if an inventory were held to be necessary, its absence might make the application defective but does not prevent from making it a step in aid of execution : Bando Krishna v. Naraaimha (1912) I.L.R. 37 Bom. 42, 61, s. c. 14 Bom. L.E. 861 and Gobardhan Das Dwarka Prasad v. Satieh Ohandra Rai (1922) I.L.R. 609. Thus, an application for execution Unaccompanied by a copy of the decree will be a step in aid of. Execution : Pachiappa Aohari v. Poojali Seenan I.L.R(1905) . Mad. 557 Again as to notice, an application without notice may be a step in aid of execution : Keshavlal Bechar v. Pitamberdas Tribhuvandaaw. In the present case notices were ordered to issue but were not issued because of the refusal of the Court to extend the time for the appellant to put in the inventory and the dismissal of the dark hast.

4. Apart, therefore, from the futile objection as to names on the part of the respondents I am of opinion that an inventory was not necessary. The darkhast was a step in aid of execution and so was the application of January 23, 1923. The present darkhast is, therefore, in time.

5. The appeal is allowed and the order of the lower appellate Court set aside, The trial Court will take the darkhast back on the file for disposal on the merits. Costs throughout on the respondents.


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