1. This appeal has been referred to a Division Bench by Mr. Justice Shah because it raises apoint of limitation on which there is apparently a conflict in the reported decisions of this Court. The point of limitation arises in this way :
2. A compromise decree was passed in a mortgage suit on 27-2-1935. This decree directed the defendant to pay to the plaintiff within six months Bs. 2,530 with costs and future interest at 6 per cent, per annum. On payment of this amount, the defendant was to redeem the property from the mortgage in favour of the plaintiff. The decree further provided for a charge on some other properties of the judgment-debtor which were not the subject-matter of the mortgage. The decree, besides, gave the decree-holder the right to recover the balance, if any, personally from the defendant.
In accordance with the terms of this decree a final decree was drawn on 17-3-1936. Thereafter the decree-holder filed darkhast No. 418 of 1936, and in execution proceedings the mortgaged property was sold and Rs. 2,500 was recovered. This darkhast was thus finally disposed of on 31-7-1939. On 28-7-1942, the decree-holder filed the second, darkhast. No. 364 of 1942. In this darkhast he claimed to recover the balance by attachment and sale of the movable properties of the judgment-debtor. This darkhast came to be dismissed for non-prosecution on 6-3-1844. On 11-3-1947, the present darkhast, No. 93 of 1947, has been filed, and in this darkhast the decree-holder has claimed to recover the balance of the decretal amount by sale of the property over which a charge has been created by the decree.
It is common ground that if the earlier darkhast No. 364 of 1942 is held to be an application made in accordance with law, the present darkhast would be in time under Article 182, Limitation Act. Between 6-3-1947, to 11-3-1847, the Court was closed and so there would be no difficulty of limitation by reason of the fact that the darkhast was not filed on 6-3-1947, but was filed on 11-3-1947. The executing Court took the view that darkhast No. 364 of 1942 was an application made in accordance with law and he, therefore, held that the present darkhast was in time. That is why he has directed that the execution should be transferred to the Haveri Court for sale of the charged property. When the matter was taken in appeal to the learned District Judge, it was held by him that darkhast No. 364 of 1942 was not an application made in accordance with law and so the present darkhast is not in time. In the result the darkhast application has been dismissed as barred by limitation. It is this order which is challenged before us by Mr. Sukthankar on behalf of the decree-holder.
3. Mr. Sukthankar contends that the lower appellate Court was wrong in taking the view that it was not open to him to claim the balance of the decretal amount such as it was on 28-7-1942, by the attachment and sale of movable property. According to Mr. Sukthankar it was not necessary that the decree-holder should have pursued the three remedies provided to him under the decree in the sequence in which they are mentioned in the decree. He concedes that the decree seems to provide that the mortgaged properties should be sold first, then the decree-holder should proceed against properties over which a charge was created and it was only if any balance of the decretal amount still remained due that he was authorised to proceed against the other properties of the judgment-debtor on the basis of a personal decree.
His argument, however, is that the creation of the charge over non-mortgaged properties of thejudgment-debtor was entirely for his benefit and it was, therefore, open to him to give up benefit and seek to proceed to execute the decree as a personal decree for the whole of the amount due after the mortgaged property was sold. In support of this contention Mr. Sukthankar has relied upon the decision of this Court in -- 'Ramchandra-rao Gangadharao v. Vithal Keshav', AIR 1948 Bom 143 (A). In this case the Court was dealing with a decree for maintenance which had provided that the 'maintenance debt' should be paid by the defendants out of the family property in their possession and which had laid a charge on certain property for that amount.
The decree had also provided that the plaintiff was entitled to put up for sale these properties in execution proceedings. It appeared that in execution of this decree the executing Court had permitted execution to proceed against certain movable property of the defendant other than the property which had been charged under the decree. The judgment-debtor contended that it was not open to the decree-holder to adopt this course because the decree required that he must first proceed against the charged property before he claimed to recover his amount by attachment and sale of other properties of the judgment-debtor.
This contention was negatived by Macklin and Bavdekar JJ. The learned Judges took that view that the object of the charge was primarily for the benefit of the creditor and so it was open to him to execute his decree in any order that he pleased, viz., by proceeding against property not subjected to the charge. The learned Judges realised that the view which they were taking was inconsistent with the view expressed in -- 'Raychand Jivaji v. Easappa Virappa : AIR1941Bom71 (B) and -- 'Bamabai Balkrishna v. Janardan Eknath : AIR1943Bom158 (C). But they held that their own conclusion was clearly consistent with the decision of the Full Bench in -- 'Gurappa Gurushiddappa v. Amarangji Vanichand : AIR1941Bom90 (D).
It is unnecessary to pursue this point further, because, it seems to us clear that on the terms of the decree with which we are concerned it was not open to the decree-holder to execute the decree as a personal decree against the judgment-debtor until he had exhausted the two other remedies provided by the decree itself. The words used in the decree, in our opinion, undoubtedly provided for three different modes to enable the decree-holder to recover his decretal amount; but in doing so the decree also provided for the sequence of the mode and manner in which these remedies should be enforced.
The sequence has been clearly indicated in the decree and the decree-holder had to follow this sequence while executing this decree. Under this decree, it was only after the mortgaged property as well as the charged properties were sold that the decree-holder could have executed the decree as a personal decree and that too to recover the balance that may still remain outstanding. We must, therefore, hold that the decree-holder would not have been able to proceed against the movable properties of the judgment-debtor in darkhast No. 364 of 1942.
4. The question which then arises for decision is whether this fact necessarily leads to the conclusion that the said darkhast was not an application made in accordance with law. The expression 'an application made in accordance with law' is used in col. III, para, 5 of Article 182, Limitation Act. This article provides for a period of threeyears for the execution of decrees and in that connection different starting points of time are enumerated in col. III. Paragraph 5 of this column, lays down that in cases
'where the application next hereinafter mentioned has been made' the starting point for limitation is 'the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree.'
This means that the date of the final order on the previous application for execution would be the starting point for limitation under Article 182, and if the present darkhast has been filed within three years from that date it would be in time, provided of course that the said earlier application is shown to have been made in accordance with law.
5. The expression 'an application made in accordance with law' has given rise to several interpretations all of which cannot be easily reconciled. In interpreting this expression it is necessary to avoid the temptation of laying down any general test which could be universally applied and the application of which would in all cases lead to a correct conclusion. The question as to whether any given application is in accordance with ]aw or not must, in our opinion, inevitably 'depend upon the facts and circumstances in each case.
It is quite clear that the expression 'in accordance with law' primarily and in the first instance refers to the requirements of the law of execution; and the most material provisions of the law of execution are to be found in the provisions of Order 21. Rule 11. This expression, then, must mean that an application in accordance with law must comply with the requirements of Order 21, Rule 11. But this statement itself cannot be taken as true or correct without some necessary qualifications. It may be that an application may not initially satisfy all the requirements of Order 21, Rule 11, and yet some of the requirements which are not complied with may be of a minor character and some others can be complied with after the presentation of the application without doing any harm or damage to the validity of the application itself.
But, on the whole, it cannot be disputed that the requirements of Order 21, Rule 11, must be satisfied by any application which claims to have been made in accordance with law. It cannot also be disputed that the requirements of any other law as to execution must likewise be satisfied. Thus an application for execution which is barred by limitation cannot be treated as 'made in accordance with law'.
6. But this position itself raises some points of doubt and complexity which it is not very easy to answer. It would be easy enough to hold that if a person who is not connected with the decree in any legal manner whatever applies for the execution of the decree, his application would not bean application 'made in accordance with law'. It may also be that if an application is made by a decree-holder in which he claims a relief which is not at all referable to the decree, that again may not be an application made in accordance with law.
Similarly, if an application is made to a Court which has obviously no jurisdiction to entertain it, that may lead to the result that the application is not one made in accordance with law. Indeed, in such cases which are clearly outside the scope of Order 21, Rule 11, it may even be held that the applications are not bona fide. If a personwho has nothing to do with the decree seeks to execute it or if a decree-holder seeks to obtain a relief which is wholly outside the decree and has not even the remotest connection with the decree, there would be no difficulty in holding that no proper application has been made and so it can safely be treated as not one made in accordance with law.
Thus it would be seen that the question does not present difficulties so long as we are dealing with the formal requirements of the law of execution and so long as we are dealing with cases of applications where reliefs are claimed which are wholly outside the decree or reliefs granted by the decree are claimed by persons who have nothing to do with the decree. But if a decree-holder applies to execute the decree, complies with the formal requirements of Order 21, Rule 11, but claims a relief under the decree which is premature, would that application be treated as one made in accordance with law or not?
If a decree-holder claims a relief in execution of a decree to which he is prima facie entitled under the decree but which can be resisted by the judgment-debtor on some other grounds effectively, can the application be said to be one made in accordance with law or not? In other words, does the character of the application depend upon the final result of the application? Doss it depend upon the decision of the question as to whether the relief claimed by the decree-holder would ultimately be granted in his favour?
Putting, the same point in another form, does it depend upon the question as to whether the Court would be competent to and would grant the relief claimed by the decree-holder in that particular application? In our opinion, in dealing with this class of cases the Court would have to consider the nature of the decree and the facts and circumstances in relation to which the particular relief is claimed. It would be difficult if not impossible to lay down any general rule to meet all kinds of possible cases arising under this class. It is quite conceivable that one Court may take the view that the relief claimed by the decree-holder can be awarded to him, while another Court may take a different view on the same decree.
We are disposed to hold that the decision about the character of an application in this context should not be made to depend upon the ultimate view that a Court may take as to the right of the decree-holder to obtain the particular relief claimed in the application. The risk in adopting this test would be that on many matters arising for decision in execution proceedings in that behalf, judicial opinion is not likely to be uniform and it would obviously be unfair and inequitable to decide the character of the application solely by reference to the final decision on the point raised in the application on the merits.
7. In the present case the decree-holder contended in both the Courts below that the charge which had been created in his favour was primarily and exclusively for his benefit and it was open to him to give up that benefit and to execute the decree as a personal decree in respect of the whole of the amount that remained due after the mortgaged property was sold. In fact, the executing Court accepted this contention. He held that it was perfectly competent to the decree-holder to give up the additional protection given to him by the creation of the charge and so he came to the conclusion that the earlier darkhast No. 364 of 1942 was one in accordance with law, and he directed that the present darkhast should be sentfor execution to another Court within whose jurisdiction the property of the judgment-debtor issituated.
Undoubtedly the lower appellate Court took a contrary view and we have agreed with the view of the lower appellate Court. But that itself illustrates that this was a matter on which there was room for difference of judicial opinion and so we would be reluctant to hold that in such a case the mere fact that it is ultimately decided that the decree-holder was not entitled to execute the decree as a personal decree unless he had exhausted the two other remedies available to him should impress upon the darkhast application of 1942 the character of an application not made in accordance with law.
The decree-holder was entitled to recover the balance which he had set out in the said darkhast. He was also entitled to recover the balance from the judgment-debtor's properties which were not charged. But the claim in that behalf is now held to be premature. It is not a case where a relief is claimed which is so completely outside the decree that it can be said legitimately that the application in which it is claimed cannot be treated as an application to execute the present decree itself. All that could be said is that the relief claimed in that application was premature. We are disposed to hold that an application which is otherwise made in accordance with law and the only infirmity in which is that the relief claimed by it is premature should not be regarded as not one made in accordance with law.
8. The lower appellate Court has, however, followed a decision of a Division Bench of this Court which has taken a contrary view. In --'Gopal Parsharam v. Damodar Janardan : AIR1943Bom353 (E), N, J. Wadia and Sen JJ. had occasion to consider the meaning of the expression 'in accordance with law'. They were dealing with the case of a mortgage decree, and the application whose character fell to be considered had been made by the decree-holder under Order 21, Rule 11, on the ground that he was entitled to rateable distribution. The decree-holder applied in execution and invoked the provisions of Section 73 of the Code in support of his claim for rateable distribution.
It was held by the learned Judges who decided this case that a person who obtains a decree on mortgage cannot be regarded as a person in whose favour a decree for the payment of money has been passed, and since the provisions of Section 73 are available only to persons in whose favour decree for the payment of money has been passed the decree-holder in question was not entitled to the benefit of Section 73. Having come to this conclusion, the learned Judges had naturally to consider whether the application for execution in which a claim under Section 73 had been made by the decree-holder could be said to have been made in accordance with law.
It was clear that if the said application was made in accordance with law, the darkhast from which the appeal before this Court arose would have been in time. It was ultimately held that the said application was not made in accordance with law and so the darkhast was time-barred. Mr. Justice Sen who delivered the judgment of the Bench was not prepared to accept the view that the expression 'in accordance with law' more particularly refers to the requirements of the law of execution as set out in the provisions of Order 21, Rule 11. He also held that even as to the requirements of Order 21, Rule 11, Sub-rule (2), it can-not be said that they are merely formal requirements,
In this connection he referred to the change made in the provisions of Order 21, Rule 11, Sub-rule (2), Clause (j)(v), wherein the word 'sought' had been replaced by the word 'granted'. The present Code says: 'the mode in which the assistance of the Court is required as the nature of the relief granted may require' instead of 'as the nature of the relief sought may require'. Mr. Justice Sen thought that this was a matter of substance and not a mere matter of form. The test which this Court applied in dealing with this question was that the application must be such that it would be possible for the Court to issue execution upon it; in other words, the test would be, whether it would have been within the power of the Court to grant the kind of relief asked for.
If it appeared that the relief which was claimed by the decree-holder could not have been granted, then the application cannot be said to be one made in accordance with law. In coming to this conclusion Mr. Justice Sen observed that the expression 'in accordance with law' in Article 182(5) has some reference to the material content, apart from the form and formal content, of an application for execution. It must, therefore, be conceded that this decision in substance is inconsistent with the view we are disposed to take of the meaning and denotation of the expression 'in accordance with law'.
Since this decision itself represents the view of a Divisional Bench of this Court, we would, in ordinary course, have referred, the question to a larger Bench; but we have not adopted this course because we are satisfied that the authority of this Judgment has been to some extent shaken by a subsequent Full Bench decision of this Court in -- 'Thakarshi Shah v. Waman', : AIR1950Bom184 (F). Besides, there are other reported decisions of Divisional Benches of this Court which also appear to be inconsistent with this judgment. We may also add that the observations made by the Privy Council in -- 'Govind Prasad v. Pawan-kumar , appear to lend some support to the construction which we are disposed to put upon the expression 'in accordance with law'. We would, therefore, begin by referring to the said Privy Council judgment itself.
9. In -- 'Govind Prasad v. Pawankumar, (G)', the Privy Council had to consider the effect of the provisions of Article 182(5), and in doing so they have observed that the words 'in accordance with law' mean in accordance with the law relating to execution of decrees. The application for execution whose character had to be determined in this case had been dismissed under Order 21, Rule 17, on the ground that the certified extracts in respect of the property involved in execution proceedings had not been filed by the decree-holder though he had been called upon to do so.
The argument urged by the judgment-debtor was that the earlier execution application which had thus been dismissed by the executing court could not be treated as an application made in accordance with law. This contention had been rejected by the Nagpur High Court, and when the decision of the Nagpur High Court was challenged before the Privy Council, their Lordships took the same view as the Nagpur High Court in the matter.
In examining the contention of the judgment-debtor, it would appear that their Lordships considered the material provisions of the law of execution which are contained in Order 21, Rules 11 to13 and Rules 14 and 17, and perhaps it would be reasonable to infer that the Privy Council took the view that requirements which have to be satisfied before an application can be said to have been made in accordance with law are primarily and principally the requirements laid down by the law of execution itself. We will now proceed to consider the judicial decisions of the Indian High Courts bearing on this point which have been cited before us.
10. In -- 'Bando v. Narsinha 14 Bom LR 861 (H), the decree-holder applied to execute the decree and he was met with the plea that his application was beyond time. The application in question was the sixth of its kind and the decree-holder's case was that this one was in time because the previous darkhasts were applications made in accordance with law and so they served as steps-in-aid. The Subordinate Judge held that the five earlier darkhast applications were not in accordance with law and so he dismissed the sixth darkhast application. When the matter came to this Court in appeal, it was held that the earlier darkhasts were in accordance with law and so the darkhast giving rise to the appeal was in time.
Now, it is material to remember that the view taken by the executing Court in the first instance was that the relief claimed by the decree-holder in the five earlier darkhasts could not have been awarded to him having regard to the merits of the said claim. Both Mr. Justice Chandavarkat. and Mr. justice Batchelor disapproved of this approach to the question. Mr. Justice Chandavarkar considered the scheme of Order 21, Rule 11, referred to the change which had be&n; made in Clause (j) by the Code of 1908 and he held that the decision of the question as to whether a particular application is in accordance with law cannot depend upon the decision of the Court on the merits of the claim made by the decree-holder in his darkhast application.
If in substance the requirements of the Code of Civil Procedure or any other law relating to exetion are satisfied by the application, then the application should be taken to be one in accordance with law, whether or not the decree-holder would have succeeded in obtaining the relief on the merits. In other words, the fact that there was a good defence to the decree-holder's claim, made in the earlier execution applications would not detract from the character of the said applications as applications made in accordance with, law.
This Judgment was cited before N. J. Wadia and Sen JJ. in -- 'Gopal Parsharam's case, (E), but Mr. Justice Sen took the view that neither the decision nor the ratio adopted both by Chandavarkar J. and Batchelor J. was against the test which he was inclined to lay down. With respect, we do not see how in view of the clear statement of the law which is to be found in the judgment of Mr. Justice Chandavarkar it could be said that the general test which Mr. Justice Sen has laid down is not inconsistent with the decision in --'Bando's case, (H).
It may not be irrelevant to point out that even on the question as to whether a mortgagee-decree-holder is a person in whose favour a decree for the payment of money has been passed or not, there was apparently considerable room for argument and it was only when it was held that such a decree-holder is not a person falling within Section 73 that N. J. Wadia and Sen JJ. had to consider the question as to whether the application made by him under Section 73 was one made in accordance with law or not.
It is, therefore, clear that in deciding the question as to whether the relief claimed by the decree-holder in the earlier application for execution could have been granted or not, the learned Judges had to consider the merits of that claim and they allowed their decision on the merits of that claim to affect their conclusion as to whether the said application was one in accordance with law or not. With respect, that is precisely what Mr. Justice Chandavarkar held was not 'a reasonable approach to the question. With respect, again, we prefer -to follow the decision and the reasoning adopted in -- 'Bando's case, (H)', to the decision and reasoning in -- 'Gopal Parsharam's case, (E)'.
11. There is another reported decision of a Division Bench to which the attention of N. J. Wadia and Sen JJ. does not appear to have been drawn. This decision is reported in -- 'Sadashiv v. Narasingrao AIR 1915 Bom 46 (I). The question which arose before Heaton and Shah JJ. was whether an application which had been made for execution of a decree without obtaining the Conciliator's certificate as Tequired by Section 47, Dekkhan Agriculturists' Relief Act was an application in accordance with law or not. Section 47 provides that in the absence of a Conciliator's certificate no application for execution can be entertained; and the argument was that since no certificate had been obtained by the decree-holder, the application filed by him for execution of the decree could not have been entertained and was, therefore, not an application in accordance with law.
Both the learned Judges negatived this contention and held that even without the certificate of the Conciliator the application made by the decree-holder was one in accordance with law Both the learned Judges construed the word 'entertained' in the context of Section 47 and they held that though it may be that the decree-holder would not have obtained any relief in the earlier execution applications without the production of the Conciliator's certificate, that was a matter affecting the merits of his claim in the result and that could not be allowed to affect the decision of the question as to whether the application itself was in accordance with law or not.
12. We have yet another decision in which a contrary view appears Eo have been expressed. This is a judgment of a Divisional Bench, Macklin and Lokur JJ., in -- 'Shankar Hari v. Damodar Vyankaji', AIR 1945 Bom 380 (J). Mr. Justice Lokur who delivered the judgment of the Bench has observed that the expression 'in accordance with law' in Article 182(5) does not imply that the application must be successful. It may be in accordance with law for the purpose of that article and yet the applicant may not be entitled to any relief on account of circumstances other than there being any defect in the application itself.
It is true that in this particular case the defect in the application arose by reason of the subsequent conduct of the decree-holder in that no steps were taken to issue notices under Order 21, Rule 16. But the decision is of some assistance inasmuch as it emphasises the fact that the nature of the claim made and its chances of succeeding in the earlier application would not have a material bearing on the decision of the question as to whether the application itself in which the said relief is claimed is one in accordance with law or not.
13. That takes us to the decision of the Pull Bench In -- 'ThaKarshi Shah v. Waman (F)'. Inthis case the question of the construction of the expression 'in accordance with law' arose in somewhat different circumstances. An application for execution had been made without obtaining the certificate as required by Order 30 Rule 9, and the question which arose for decision was whether such an application could be regarded as one made in accordance with law. The Full Bench answered the question in favour of the decree-holder and held that the application was one in accordance with law.
It may be conceded that the point with which we are dealing in the present appeal did not directly arise before the Full Bench. But in the arguments reference was made to several decisions which had considered this expression and amongst these decisions was the judgment of Mr. Justice N. J. Wadia and Mr. Justice Sen to which I have referred. In his judgment the learned Chief Justice has observed that it is always unsafe to lay down general tests irrespective of the particluar facts which have got to be found in a case in order to apply a particular test, and then he went on to refer to the judgment in -- 'Gopal Parsharam's case (E)'.
He held, and with respect, we think rightly, that even if the test laid down in this judgment as applied to the facts before them, the application would still have to be regarded as an application made in accordance with law. The learned Chief Justice then went on to refer to the decision in 'Sadashiv's case (I)', and 'Shankar Hari's case (J)'. Now it has been urged before us by Mr. Sukthankar that from the manner in which these three decisions are discussed it appears that the Pull Bench has, by necessary implication, expressed its preference for the view which has been taken in the two latter decisions.
Mr. Sukthankar contends that the tenor of the Judgment of the learned Chief Justice clearly indicates that the learned Judges who constituted the Pull Bench were not impressed with the view expressed in 'Gopal Parsharam's case (E)'. We cannot say that this contention is without any foundation altogether. It is partly because of the observations made in this judgment and substantially because of the earlier decisions to which we have referred that we think it would be open to us to follow the view expressed in the earlier decisions in preference to the view expressed in 'Gopal Parsharam's case (E)'. Besides, we have also referred to the Privy Council judgment which, inour opinion, lends some support to our view.
14. There is also one point on which 'Gopal Parsharam's case (E)', can be distinguished from the case before us. In that case the decree-holder was clearly not entitled to rateable distribution at all. It was a case in which a claim was made which could not arise under the decree and was in law wholly incompetent. That is not the position with regard to the claim made by' the decree-holder in darkhast application No. 364 of 1942. It is not disputed by Mr. Gumaste -- and indeed the decree is clear on the point--that in case the balance still remained due to the decree-holder after the charged properties were sold, it would have been open to the decree-holder to execute the decree as a personal decree against the judgment-debtor
The contention which has been raised by the judgment-debtor is not that the relief claimed in the earlier darkhast application is wholly outside the decree. The contention rather is that the claim then made was premature; and as I have already pointed out, even on this point the executing Court had taken a contrary view. Thisitself illustrates the risk and the inequity whichwould be involved in introducing considerations ofthe merits of the claim in the decision of thequestion as to whether the application itself is one made in accordance with law or not.
Therefore, even if we were bound by the decision in -- 'Gopal Parsharam's case, (E)', we would still, with very great respect, have been reluctant to apply the test laid down there because the facts in the case with which we are dealing can bedistinguished from the facts with which the learned Judges were dealing in -- 'Gopal Parsharam's case, (E)',
15. Mr. Gumaste for the respondent has relied upon a decision of this Court in -- 'Pandarinath Bapuji v. Lilachand Hatibhai 13 Bom 237 (K), and he has urged that the observations made by Mr. Justice Birdwood in delivering the judgment of the Bench support his contention that theearlier darkhast No. 364 of 1942 was not in accordance with law. It would appear that in --'Pandarinath's case, (K)', the decree-holder applied for possession of some property, a relief which was wholly outside the decree, and it was held that the application in which this imaginary relief was claimed was not in accordance with law
Dealing with such an application Mr. Justice Eirdwood observed that the application for execution contemplated in Clause (4) of Article 179. Limitation Act must clearly be one made in accordance with law, and to obtain some relief given by the decree, and to obtain it in the mode that the law permits. According to Mr. Gumaste if on a construction of the decree, it was not open to the decree-holder to claim attachment and sale of the movables of the judgment-debtor in darkhast 364 of 1942, it cannot be said to be an application in accordance with law.
We do not think that the observations of Mr. Justice Birdwood lend any support to Mr. Gumaste's argument. They must be read in the context of the facts with which the learned Judges were then dealing, and thus read they merely emphasise the position that if a decree-holder claims a relief which is entirely and wholly outside the decree, the application in which this relief is claimed cannot be said to be one made in. accordance with law.
16. Mr. Gumaste has also referred to the decision of this Court in -- 'Ramgopal Shriram v. Hamgopal Bhutada AIR 1934 Bom 307 (L), where it has been observed that in order to determine whether a particular application for execution isor is not in accordance with law what has to be ascertained in each particular case is whether the executing Court would or would not issue execution on the application for execution as preferred to it. In order to understand the exact import of these observations it would be necessary to refer to the decision of the Calcutta High Court from which these observations were cited with approval by Mr. Justice Divatia who delivered the judgment of the Bench.
These observations were made by the Calcutta High Court in -- 'Pitambar Jana v. Damodar Gachait : AIR1926Cal1077 (M). It is somewhat remarkable that Mr. Justice Suhrawardy and Mr. Justice Page have expressed their dissent from the earlier decision of the Calcutta High Court in --'Gopal Sah v. Janki Koer 23 Cal 217 (N), and the manner in which this dissent has been expressed and the final conclusion recorded suggest that the learned Judges were considering more the formal requirements of the law of execution than the merits of the claim made by the decree-holder in his earlier application.
When Mr. Justice Suhrawardy observed that the application to be one in accordance with law must be such upon which execution could be issued, he wanted to emphasise more the procedural requirements of Order 21, Rule 11, and the defects which he Was discussing were more the defects in reference to the said provisions than the defects in the claim itself. It would be of some interest to add that Mr. Justice Suhrawardy in criticising the earlier decision of the Calcutta High Court observed that the learned Judges who had decided the said case had in coming to their conclusion not confined themselves to the facts before them, but had made some general observations which were not justified by the said facts.
Therefore, in our opinion, the observations made by Mr. Justice Divatia in -- 'Ramgopal's case, (L)', must be similarly construed as having more direct reference to the requirements of the law of execution itself. We would like to add that the actual decision in -- 'Ramgopal's case, (L)', was that the earlier application was one made in accordance with law.
17. There is another case to which our attention has been drawn by Mr. Gumaste in support of his contention and that is the decision of the Allahabad High Court in -- 'Munawar Husain v. Jani Bijai Shankar', 27 All 619 (O). In fairness to Mr. Gumaste it must be conceded that in this judgment Mr. Gumaste has discovered a decision which is directly in point. In this case the learned Judges were dealing with a mortgage decree and the question which they had to consider was whether an application made by the decree-holder to execute the decree against the non-mortgaged property of the judgment-debtor was one in accordance with law.
The learned Judges held that the application was premature and as such could not be said to be one in accordance with law. It appears from this judgment that on the question as to whether the earlier application was premature or not there was a sharp difference of opinion. The executing Court and the lower appellate Court had held that it was not premature, while the High Court took a contrary view.
With very great respect, it seems to us somewhat difficult in this context to appreciate the principle that the expression 'in accordance with law' imports the consideration that the decree-holder must know the law and must make only such a claim as would be competent in execution proceedings. On a question where the Courts in fact took different views, the decree-holder may well be excused for protesting against the view that he should have known or would be presumed to have known that his claim was premature.
In our opinion, therefore, the question as to whether the relief claimed by the decree-holder in a given application was competent and could have been granted to him or not should not necessarily and in every case have a material bearing on the decision of the question whether the application itself was one made in accordance with law or not.
18. Mr. Gumaste has also referred us to another decision in his favour and that is the judgment of Ross and Chatterjee JJ. in -- 'Durga, Prasad Sahu v. Mt. Fowdharo Kuer : AIR1931Pat274 (P). In this case the learned Judges of the Patna High Court held that since one of the two reliefs claimed by the decree-holder in his earlier application for execution could not have been granted, the said application itself must be held to be not in accordance with law. Mr.Gumaste says that this is an extreme case and that no doubt is true.
It may however be pointed out that of the two claims made by the decree-holder, one has already been held to be untenable and yet the said claim was repeated by the decree-holder in his application. That is the only distinguishing point on which some justification may perhaps be found for the view which the Court took; but with respect we do not see how the whole application could be said to be incompetent when one of the reliefs claimed by the decree-holder was obviously legal and tenable.
In support of their conclusion the learned Judges have referred, amongst other decisions, to the judgment of this Court in -- 'Pandarinath's case, (K)'. We have already pointed out that Mr. Justice Birdwood made the observations in reference to a claim made by the decree-holder in execution proceedings which was wholly and clearly outside the decree. We must say, with respect, that we are unable to accept the view taken by the learned Judges Of the Patna High Court in -- 'Durga Prasad Sahu's case, (P)'.
19. We must, therefore, hold that the lower appellate Court was wrong in holding that the present darkhast was barred by time.
20. The result is, the appeal succeeds, the decree passed by the lower appellate Court is set aside and the matter is sent back to the executing Court for disposal in accordance with law. The appellant would be entitled to his costs of this Court. Costs in the lower appellate Court will be borne by the parties. Costs in the executing Court would be costs in the darkhast.
21. Appeal allowed.