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Martand Trimbak Garde and anr. Vs. Vinayak Kashinath Khasgivale - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1907)ILR31Bom5
AppellantMartand Trimbak Garde and anr.
RespondentVinayak Kashinath Khasgivale
Excerpt:
practice - decree--execution of decrees--transfer of decree from one district to another--rules of execution different in the two districts--procedure. - .....circulars) show that the execution of certain kinds of decrees is governed by slightly different rules in poona and in nasik. when this decree was sent by the poona court to be executed in nasik, the first thing that the executing court had to do was to decide whether the decree was of the kind defined by the rules prescribing a special procedure. in the opinion of my learned colleague it was. not without considerable doubt and hesitation i adopt that opinion. that, too, was the view taken by the court below: and whether it be a right or a wrong view, there can be no doubt but that when the court took it, it had no option but to apply the rest of the rule prescribing special modes of executing decrees within the definition. the court had not to try any question of status, had not to.....
Judgment:

Aston, J.

1. The only question in this case is, whether the decree was properly sent by the lower Court to the Collector for execution. The decree in question awards to the decree-holder a sum of money to be recovered, from the defendant, and it is left to the judgment-creditor to apply for the sale of certain property secured by the decree. It is common ground that subsequent to the decree, an order for the sale of immoveable property was passed.

2. Mr. P. P. Khare has contended that the lower Court has no jurisdiction to allow the defendant to plead in the execution-proceedings his status as an agriculturist or more accurately his status as a person earning his livelihood principally by agriculture. He has contended that the Court had no such jurisdiction, because in the suit, and in certain proceedings' taken in Poona before the decree was transferred to Nasik for further execution, no question of the status of the defendant was raised. Mr. Khare has also contended that if such a question was to be raised at all, it ought to have been raided' in Poona and before transfer of the decree to Nasik for execution and has relied on the case of Gyanmal v. Ramchandra (1896) P.J. p. 342. But the facts in that case are wholly different from the present proceedings. In that case it is said -

We think that the Subordinate Judge had no jurisdiction in the execution proceedings to reopen the question of the defendant's status as an agriculturist, which had been decided in the course of the suit, the decree in which was in process of execution.

3. In my opinion, the Nasik Court had no option, but to obey the rule issued by Government under Section 320, Civil. Procedure Code, and embodied in Government Notifications (Rule 17, page 58, of the. Civil Circulars), and as soon as it was brought to its notice that the decree came within that rule, the Nasik Court was bound to transfer the execution-proceedings to the Collector.

4. Mr. Khare's second point was, that the decree in question does not come within that rule, and he contended that it was not a decree for money, in the execution of which the Court has ordered sale of immoveable property of any person who earns his livelihood either wholly or principally by agriculture,

5. In my opinion, that contention is not sustainable, when the terms of 'the decree are looked at. The decree is a decree for money, and it is a common ground that in execution, the Court ordered the sale of immoveable property belonging to a person who earns his livelihood wholly or principally from agriculture. Although the question seems to have been in issue in the lower Court, whether judgment-debtor is an agriculturist' the' finding of the lower Court that he does earn his livelihood' principally by agriculture is not questioned in this appeal.

6. We confirm the decree of the lower Court with costs on appellants.

Beaman, J.

7. The principal point pressed on us in this appeal is, that the Nasik Court, as merely a Court of execution, had no jurisdiction to raise and try the Issue whether, the judgment-debtor was an agriculturist, that issue not having been pleaded, rftised or tried in the Court of Poona, either in the suit or the subsequent execution-proceedings there. Now if this had really been a true question of status, as Mr. Khare, who argsied the appeal with much ingenuity, evidently thought it was, there might, I think, have been some force in the contention. And it would, then, have, been necessary to examine more closely the cases that were cited to support it. But I think that the question with which we are now concerned falls to be decided on a different and a narrower ground. Where in different Districts, different modes of execution are prescribed, and where the question is how a decree passed in one, but of which execution is sought in another, of such Districts is to be executed, it appears to me plain that the executing Court must be guided by the rules in force in its own District. Now the Notifications of Government (to be found at Rule 17, page 53, of the Civil Circulars) show that the execution of certain kinds of decrees is governed by slightly different rules in Poona and in Nasik. When this decree was sent by the Poona Court to be executed in Nasik, the first thing that the executing Court had to do was to decide whether the decree was of the kind defined by the rules prescribing a special procedure. In the opinion of my learned colleague it was. Not without considerable doubt and hesitation I adopt that opinion. That, too, was the view taken by the Court below: and whether it be a right or a wrong view, there can be no doubt but that when the Court took it, it had no option but to apply the rest of the rule prescribing special modes of executing decrees within the definition. The Court had not to try any question of status, had not to determine whether the judgment-debtor was an ' agriculturist' within the meaning of the Dekkhan Agriculturists' Relief Act, as the Court in Poona, no doubt, might have had to do; but after coming to the conclusion that the decree fell within the definition of the rule prescribing special modes of execution for that kind of decrees in Nasik subject to another condition the Court was bound to determine whether or not that condition also had been fulfilled. It had to determine in other words, whether or not the judgment-debtor was a person earning his livelihood wholly or principally by agriculture. This the Court did, and finding that he was, it was again compelled to send the decree for execution to the Collector. I think, therefore, that this appeal fails, and that the decree oft the Court below must be confirmed with costs.


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