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Sheshdasacharya Vs. Bhimacharya Bapacharya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number Second Appeal No. 459 of 1912
Judge
Reported in(1912)14BOMLR1205; 17Ind.Cas.969
AppellantSheshdasacharya
RespondentBhimacharya Bapacharya
Excerpt:
.....288 of civil procedure code (act xiv of 1882).;during the proceedings to execute a decree, the decree-holder was asked by the court to produce certified extracts required by section 238 of the civil procedure code (act xiv of 1882). the decree-holder presented an application for time to produce the extract. a second darkhast to execute the decree was filed more than three years after the date of the first darkhast but it was within three years from the date of the application for time. it was contended that the second darkhast was filed in time.;that the second darkhast was presented in time, for the application for time to obtain copies required by section 238 of the civil procedure code, 1882, was a step-in-aid of execution.;haridas nanabhai v. vithaldas kisandas (1912) 14 bom...........j.1. the only question involved in this appeal is whether a certain application, made by the decree-holder on the 29th july 1907, is to be considered as a step-in-aid of the execution of the decree. if it is to be so considered, then undoubtedly the darkhast is in time. on the 8th of april 1907 the first darkhast was made by the decree -holder and the court acting under section 238 of the then code of civil procedure, called upon the decree-holder to supply, on or before the 20th july following, a certified extract from the collector's record. as the decree-holder was unable to furnish the requisite copy within the time prescribed, he made this application of the 29th july upon which the present appeal turns. this application was for an extension of time within which to produce the.....
Judgment:

Batchelor, J.

1. The only question involved in this appeal is whether a certain application, made by the decree-holder on the 29th July 1907, is to be considered as a step-in-aid of the execution of the decree. If it is to be so considered, then undoubtedly the darkhast is in time. On the 8th of April 1907 the first darkhast was made by the decree -holder and the Court acting under Section 238 of the then Code of Civil Procedure, called upon the decree-holder to supply, on or before the 20th July following, a certified extract from the Collector's record. As the decree-holder was unable to furnish the requisite copy within the time prescribed, he made this application of the 29th July upon which the present appeal turns. This application was for an extension of time within which to produce the extract from the Collector's record; and it was granted by the Court.

2. Since the learned District Judge delivered his judgment in the matter, a somewhat similar case has been decided by this Bench in Haridas Nanabhai v. Vithaldas Kisandas : (1912)14BOMLR765 , and Mr. Kelkar admits that this appeal must be decided in accordance with that case. We may add in now following Haridas Nanabhai v. Vithaldas Kisandas that it appears to us that such an application as this is not the less a step-in-aid of execution, because its immediate effect may be to defer the satisfaction of the decree. It is not necessary that it Should be a step in expedition or acceleration of the execution as against its retardation. The Act requires only that it should be a step-in-aid, and if the 'decree could not be executed at all otherwise than by means of a temporary delay, a step which ensures the ultimate execution, though at the expense of a temporary delay, may well be described as a step-in-aid of execution. Following Haridas Nanabhai v. Vitkaldas Kisandas, we reverse the decree and remand the darkhast to be decided on its merits with costs throughout.


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