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Vishvanath Parsharam Bhave Vs. Narsu Tulsidas Gujar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 602 of 1919
Judge
Reported inAIR1921Bom33; (1921)23BOMLR107; 60Ind.Cas.916
AppellantVishvanath Parsharam Bhave
RespondentNarsu Tulsidas Gujar
DispositionAppeal dismissed
Excerpt:
.....ascertain the share of judgment-debtor in property attached.;an application for time to enable the decree-holder to ascertain the share of the judgment-debtor in the property put up for sale is a step-in aid of execution, under article 182, clause 5, of the indian limitation act 1908.;semble.-although it is not necessary to have a written order staying the execution of the decree, for the purpose of section 15 of the indian limitation act 1908, still there must be a clear order staying the execution of the decree. - - 3. as regards the first point i am by no means satisfied that the decree-holder is entitled to the deduction of the time from 21st october 1914 to 21st september 1915 under section 15 of the indian limitation act. i feel satisfied that the application, exhibit 37, was.....shah, j.1. the question in this appeal is whether the present darkhast filed by the decree-holder on the 1st october 1917 is in time. the decree under execution was passed on the 19th september 1912. the first darkhast was presented on the 4th of march 1913. it appears that during the pendency of a certain suit, the execution was stayed from 28th july 1913 to 27th july 1914. it also appears that the darkhast of 1913 was adjourned from time to time from 12th october 1914 to 21st september 1915 during the pendency of certain miscellaneous proceedings relating to the investigation of claims to the attached property put forward by third parties. both the lower courts have held that the present darkhast is in time, because the decree-holder is entitled under section 15 of the indian limitation.....
Judgment:

Shah, J.

1. The question in this appeal is whether the present Darkhast filed by the decree-holder on the 1st October 1917 is in time. The decree under execution was passed on the 19th September 1912. The first Darkhast was presented on the 4th of March 1913. It appears that during the pendency of a certain suit, the execution was stayed from 28th July 1913 to 27th July 1914. It also appears that the Darkhast of 1913 was adjourned from time to time from 12th October 1914 to 21st September 1915 during the pendency of certain miscellaneous proceedings relating to the investigation of claims to the attached property put forward by third parties. Both the lower Courts have held that the present Darkhast is in time, because the decree-holder is entitled under Section 15 of the Indian Limitation Act to exclude the time from 28th July 1913 to 27th July 1914 and from 12th October 1914 to 21st September 1015. It is clear from the dates, and it is not disputed, that if these periods were excluded, the present Darkhast would be in time. The lower appellate Court also relied upon an application made by the decree-holder on the 5th of August 1915 for time to enable him to obtain information regarding the defendant's share in certain property which was attached. This application has been held by the lower appellate Court to be a step-in-aid of execution. If it is a step-in-aid of execution it is clear that apart from the first ground the present Darkhast would be in time.

2. Two points have been urged before me on behalf of the appellant, judgment-debtor : first, that the period from 12th October 1914 to the 21st September 1915 cannot be excluded under Section 15 of the Indian Limitation Act, because there is no order staying the execution of the decree, and, secondly, that the application of the 5th August is not a step-in-aid of execution, and that it is really an application in retardation of the execution.

3. As regards the first point I am by no means satisfied that the decree-holder is entitled to the deduction of the time from 21st October 1914 to 21st September 1915 under Section 15 of the Indian Limitation Act. The section provides that in computing the period of limitation prescribed for any application for the execution of the decree the time of the continuance of the order staying the execution of the decree shall be excluded. Admittedly there is no written order staying the execution of the decree during this period from 12th October 1914 to the 21st of September 1915. All that I find from the Rozanama is that the matter was adjourned from time to time during this interval. It is not without significance that it is during that interval that the application, which is relied upon as a step-in-aid of execution by the decree-holder, was made. I do not say that under Section 15 of the Indian Limitation Act a written order staying the execution of the decree is necessary; but I think that there must be a clear order staying the execution of the decree. I do not think that the orders of adjournment from time to time could be properly construed as orders directing stay of the execution of the decree. I am, therefore, not prepared to accept the view taken by the lower Courts that this period can be excluded under Section 15.

4. There is, however, the point relating to the application made on the 5th August 1915. Under Article 182, Clause 5, of the third column of the Schedule of the Indian Limitation Act, the decree-holder would be entitled to present the application for execution within three years from the date of his applying in accordance with law to the proper Court to take some step-in-aid of execution of the decree. It is clear that the expression 'step-in-aid of the execution of the decree' must be construed liberally. I feel satisfied that the application, Exhibit 37, was made to take a step-in-aid of the execution. On its face, it is an application for time being granted to enable the plaintiff to inquire about and to state the particulars as regards the extent of the share of the judgment debtor in the village of Sanglat which was put up for sale. Such information would be necessary for the proper preparation of the proclamation of sale; and an application for adjournment to get such information ought to be treated as an application to take a step-in-aid of execution. The fact that subsequently the decree-holder asked for adjournments and allowed that particular Darkhast to drop has no bearing upon the question whether this application was made in order to take a step-in-aid of execution. I am unable to accept the suggestion made on behalf of the appellant that in view of the subsequent adjournments this application should be treated as an application in retardation of the execution.

5. I am satisfied that the Darkhast is in time. I affirm the decree of the lower appellate Court and dismiss the appeal with costs.


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