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Sakkargauda Basangauda Gonnagar Vs. Bhimappa Hanmappa Pujar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 8 of 1928
Judge
Reported in(1930)32BOMLR1368; 129Ind.Cas.159
AppellantSakkargauda Basangauda Gonnagar
RespondentBhimappa Hanmappa Pujar
DispositionApplication dismissed
Excerpt:
indian limitation act (ix of 1908), article 182 - decree--execution--application not in accordance with law--civil procedure code (act v of 1308), order xxi, rule 13--description of properly to be attached--want of description.;an application for execution of a decreo, which contravenes order xxi, rule 13, of the civil procedure code, as not containing description of the property to be attached and sold, is not an application in accordance with law within the meaning of article 182 of the indian limitation act, 1908.; abdul rafi kltan v. maula bakhsh (1925) i.l.r. 37 all. 537, followed.;bando v. narsinha (1912) 14 bom. l.r. 861, distinguished. - - 2. the decision in both courts turned on the point whether failure to comply with the provisions of order xxi, rule 14, imparted to the..........with law, to bring his last application in time. the original court rejected the application as time-barred. the appellate court held that this was not so, and ordered execution to proceed. the appellant's appeal is against this order.2. the decision in both courts turned on the point whether failure to comply with the provisions of order xxi, rule 14, imparted to the application no. 168 of 1924 the character of being ' not in accordance with law ' or not. the original court relied on the ruling in abdul rafi khan v. maula bakhsh ilr (1915) all. 527, while the learned district judge held that the precedent applicable was the one contained in bando v. narsinha : (1912)14bomlr861 , looking at the certified copy of the application no. 168 of 1924, which is on the record of this court, i.....
Judgment:

Murphy, J.

1. This is an appeal from an order made in execution. The decree-holder applied in darkhast No. 218 of 1924, to execute his decree, obtained in November 1912, relying on his immediately preceding application, No. 168 of 1924, having been one made in accordance with law, to bring his last application in time. The original Court rejected the application as time-barred. the appellate Court held that this was not so, and ordered execution to proceed. The appellant's appeal is against this order.

2. The decision in both Courts turned on the point whether failure to comply with the provisions of Order XXI, Rule 14, imparted to the application No. 168 of 1924 the character of being ' not in accordance with law ' or not. The original Court relied on the ruling in Abdul Rafi Khan v. Maula Bakhsh ILR (1915) All. 527, while the learned District Judge held that the precedent applicable was the one contained in Bando v. Narsinha : (1912)14BOMLR861 , Looking at the certified copy of the application No. 168 of 1924, which is on the record of this Court, I find that in fact the defect was not that the learned Judges have mentioned. There was actually no description of what was sought to be attached and sold, the reference to it being that, ' it was described overleaf,' which it was not. The order made on this was, that the name of defendant No. 3 had not been properly given and that the property was not mentioned, and that the darkhast will be proceeded with when these defects are cured. On the next day the decree-holder put in an application to the effect that he did not wish to proceed, and the darkhast was struck oft It has been urged before me that the objection as to the defect under Rule 13 has not been made in the memo of appeal, but on the record there is no doubt that it is there, and that the application was defective and not in accordance with law. Even if we were to assume that the objection was rightly taken under Rule 14, it seems to me that looking to the provisions of Rules 11 to 17, the defect, when pointed out, not having been remedied within the time allowed, the application continued to be one not in accordance with law. The ruling in Bando v. Narsinha, appears to have no application to the facts of this case. I think the last application for execution was time-barred and that the learned Extra Assistant Judge's decree was wrong. I reverse it and direct that the application should be dismissed with costs as time-barred. The respondent will pay all the costs of this appeal.


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