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Baliram Narayan Naik Vs. Sakharam Ramji Gujar - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtMumbai
Decided On
Case NumberFirst Appeal No. 262 of 1936
Judge
Reported inAIR1940Bom250; (1940)42BOMLR423
AppellantBaliram Narayan Naik
RespondentSakharam Ramji Gujar
Excerpt:
.....' not in accordance with law '-application mat containing description of property sought to be sold-property already under attachment- step in aid of execution-civil procedure code (act v of 1908), order xxi, rule 13.;where property sought to be sold in execution of a decree has already been attached before judgment, an application for execution by sale of that property, though not accompanied by description of the property as required by rule 13(a) of order xxi of the civil procedure code of 1908, is still 'in accordance with law' far the purposes of article 182, clause (5), of the indian limitation act, 1908, and is a step-in-aid of execution of the decree.;sakkargauda v. bhimappa (1930) 32 bom. l.r. 1368 distinguished.;where a sale of property attached before judgment is asked for..........custodia legis.' hence a mere reference in the darkhast application that the property sought to be sold is attached already is a sufficient specification of that property, and if merely its sale is asked for in execution of the decree, the requirements of order xxi, rule 11, sub-rule (2), clause (;), are sufficiently complied with. even in sakkargauda v. bhimappa it was not held that the requirements of order xxi, rule 11, were not complied with ; but the application was held to be not in accordance with law as the details of the description of the property and the specifications of the judgment-debtor's interest or share in the property were not given as required by order xxi, rule 13. but, as i have said, that rule has no application to the facts of the present case, as the property.....
Judgment:

Lokur, J.

1. The point in this appeal is simple. The appellants' shop by name 'Baliram Narayan Naik' obtained a money decree against the respondents for Rs. 4,995 and costs on July 24, 1924. During the pendency of that suit some property of the respondents had been attached before judgment, and the attachment was ordered to continue by the decree. The appellants presented a darkhast No. 830 of 1924 to execute the decree for recovering the decretal amount by the sale of the attached property. The respondents tendered Rs. 1,000 and were allowed to satisfy the decree by annual instalments beginning from January 31, 1927. The attachment of the respondents' property was allowed to continue with their consent, and the darkhast was disposed of on December 23, 1925. It was ordered that in case of two defaults the entire balance of the decretal amount then in time should be recovered at once. Thereafter the appellant presented darkhast No. 230 of 1931 to recover the balance of the decretal amount by the sale of the property attached. That darkhast was presented on January 31, 1931, and was duly registered under Order XXI, Rule 17, Clause (4), of the Civil Procedure Code; but certain defects, including the absence of the list or the description of the attached property sought to be sold, were noticed, and the appellants were called upon to give an explanation of those defects. The appellants took time; but as they failed to put in any explanation, the darkhast was disposed of on June 15, 1931. The appellants then presented this darkhast (No. 778 of 1934) on June 15, 1934, to recover the balance of the decretal amount by sale of the attached property. The respondents contended that as the appellants' darkhast No. 230 of 1931 was not in accordance with law, the present darkhast was time-barred. This contention was upheld by the lower Court, and the darkhast was dismissed.

2. The only issue in this appeal is whether darkhast No. 230 of 1931 was in accordance with law so as to give a fresh starting point of limitation under the provisions of Article 182, Clause (5), of the First Schedule to the Indian Limitation Act, 1908. The learned Subordinate Judge relied upon the ruling in Stakkargauda v. Bhimappa : (1930)32BOMLR1368 for holding that the appellants' failure to give a description of the property sought to be sold was such a defect as rendered the darkhast application ' not in accordance with law.' The facts in Sakkargauda v. Bhimappa were different. In that case the property sought to be sold in execution of the decree had not been previously attached, and the application for execution omitted to mention what property was to be attached and sold. That omission obviously contravened Order XXI, Rule 13, of the Civil Procedure Code, and was therefore held to be not an application in accordance with law within the meaning of Article 182 of the Indian Limitation Act. Order XXI, Rule 11, Sub-rule(2), of the Civil Procedure Code, prescribes what should be contained in an application for execution, and Clause (j) of that sub-rule says that the application should state the mode in which the assistance of the Court is required, whether (i) by the delivery of any property specifically decreed ; (ii) by the attachment and sale, or by sale without attachment, of any property ; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; or (v) otherwise, as the nature of the relief granted may require. Sub-rale (2)(ii) obviously contemplates that the applicant seeking the execution of the decree may either ask the attachment and sale of the judgment-debtor's property or merely the sale of his property without attachment. In the present case it was not necessary for the appellants to ask for the attachment of the judgment-debtor's property as it had already been attached and the attachment had been continued. Order XXI, Rule 13, which is relied upon in the ruling in Sakkargauda v. Bhimappa, provides that where an application is made for the attachment of any immoveable property belonging to a judgment-debtor, it shall contain at the foot a description of such property and a specification of the judgment, debtor's share or interest in such property. It does not say that even where an application is made only for the sale of the immoveable property of a judgment-debtor these details must be given. The reason is obvious. If the property is already attached or the attachment is unnecessary for any reason, then prima facie the Court is presumed to know what property is to be sold. As observed by Madgavkar J. in Hari v. Shrinivas : (1931)33BOMLR1130 ' attachment merely results in the property remaining in custodia legis.' Hence a mere reference in the darkhast application that the property sought to be sold is attached already is a sufficient specification of that property, and if merely its sale is asked for in execution of the decree, the requirements of Order XXI, Rule 11, Sub-rule (2), Clause (;), are sufficiently complied with. Even in Sakkargauda v. Bhimappa it was not held that the requirements of Order XXI, Rule 11, were not complied with ; but the application was held to be not in accordance with law as the details of the description of the property and the specifications of the judgment-debtor's interest or share in the property were not given as required by Order XXI, Rule 13. But, as I have said, that rule has no application to the facts of the present case, as the property had already been attached and the application was not for its attachment, but merely for its sale. To get over this difficulty, the learned advocate for the respondents contended that as soon as darkhast No. 830 of 1924 was disposed of, the attachment before judgment came to an end under Order XXI, Rule 57, of the Civil Procedure Code. It is held by a full bench of the Madras High Court in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R. (1923) Mad. 483 f.b that Order XXI, Rule 57, is applicable even to attachments before judgment. Although that ruling was not followed in all its details by our High Court in Hari Sabaji v. Shrinivas Vithal I.L.R. (1931) 55 Bom. 693 yet it is held that when a sale of the property attached before judgment is asked for in a darkhast and the darkhast is disposed of, then the attachment is determined so far as regards such property is concerned. Although that is a general rule applicable to the determination of an attachment before judgment after the disposal of the darkhast in which the property attached was sought to be sold, yet in this particular case when darkhast No. 830 of 1924 was disposed of, a specific order was made with the consent of the judgment-debtors that the attachment should continue. In that darkhast the judgment-debtors asked for permission to satisfy the decree by instalments, and the order passed by the Court shows that one of the considerations which induced it to grant the request of the judgment-debtors was that they consented to the continuation of the attachment before judgment. Having thus acquiesced in the continuation of the attachment before judgment even after the disposal of the darkhast and having gained the advantage of being allowed to satisfy the decree by-instalments, it is not now open to them to say that the attachment did not continue after the darkhast was disposed of. The attachment must, therefore, be held to have subsisted when darkhast No. 230 of 1931 was presented by the appellants. If so, the only question to be considered is whether the darkhast application was such that the executing Court could have proceeded with it. The test as laid down by the Calcutta High Court in Pitambar Jana v. Damodar Guchait I.L.R. (1926) Cal. 664 and accepted in Ramgopal Shriram v. Ramgopal Bhutada I.L.R. (1933) 59 Bom. 1. is :

The expression ' in accordance with law' in Article 182(5) should be taken to mean that the application though defective in some particulars was one upon which execution, could lawfully be ordered. If the omissions were such as to make it impossible for the Court to issue execution upon it, it should be held that such an application was not in accordance with law.

Wherre an application for execution in substantial compliance with the law is preferred to the Court, such an application will be effectual to stay the progress of limitation whether the Court admits, or rejects, or returns the application, or allows such application to be amended.

3. In this case it does not appear that the defects were noticed as soon as the darkhast application was presented on January 31, 1931. In that case the procedure laid down in Order XXI, Rule 17, of the Civil Procedure Code, would have been adopted and the darkhast would not have been admitted and entered in the register of darkhasts until the defects noticed were remedied under Sub-rule(4) of that rule. But the darkhast was admitted and registered as darkhast No. 230 of 1931, and thereafter the appellants were called upon to furnish the details of the attached property. It was not that no description of the property sought to be sold was given. It may not be a description by survey numbers or boundaries, but the description of the property sought to be sold as ' the attached property' was sufficient to determine specifically what that property was. Of course such determination may require further evidence, and if the order for attachment and the application on which that order was passed had been produced, the specific property sought to be sold would have been known. It is, therefore, clear that the mode in which the appellants sought the assistance of the Court for the recovery of the decretal dues was specifically stated as required by Order XXI, Rule 11, Sub-rule (2), Clause (j), of the Civil Procedure Code. I, therefore, hold that the darkhast application in darkhast No. 230 of 1931 was in accordance with law and that as it starts a fresh period of limitation, the present darkhast is in time.

4. I, therefore, set aside the order of the lower Court and remand the darkhast to be proceeded with in accordance with law. The respondents shall pay the appellants' costs in this Court and bear their own.


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