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Babamiya Dawoodmiya Masankatti Vs. Abdul Karim Mahamadmiya Mulla - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberLetters Patent Appeal No. 36 of 1932
Judge
Reported inAIR1934Bom216; (1934)36BOMLR437
AppellantBabamiya Dawoodmiya Masankatti
RespondentAbdul Karim Mahamadmiya Mulla
DispositionAppeal allowed
Excerpt:
.....of execution-civil procedure code (act v of 1908), order xxi, rules 15 and 16- two decree-holders-application for execution by one of them-other decree-holder assenting to application-application in accordance with law.;a decree obtained by two persons was sought to be executed by one of them. in the course of the execution proceedings, the other decree-holder gave a purshis stating that he had no objection if the decree were executed by the applicant alone, the application ultimately failed for want of prosecution. a question having arisen whether the application was according to law and served as a step-in-aid of execution:-;that the statement made by the other decree-holder in the purshis did not amount to a relinquishment or to an assignment of his interest in the..........abdul karim walad maha-madmiya. it was a consent decree and concerned a piece of land of which the decree-holders were given a share by its terms. the decree was passed in 1923. in 1925 one of the decree-holders, babamiya, made an application to have the decree executed. in the course of that application babamiya stated:the plaintiff no. 2 has relinquished his right over the property in question when the suit was going on. therefore the first plaintiff alone has given this darkhast. 'the order made on the application was:applicant writes that plaintiff no. 2 has relinquished his rights over the property in suit. he should put in papers in support of that statement.2. some months after a purshis was put in by plaintiff no. 2 to the following effect:the decree in the above case has been.....
Judgment:

Murphy, J.

1. This is an appeal under the Letters Patent on a certificate from the decision of Mr. Justice Barlee, who decided the second appeal; The facts underlying the litigation were as follows:

A decree was obtained by two persons, Babamiya walad Dawoodmiya and Abdul Khavdin walad Amirsaheb against Abdul Karim walad Maha-madmiya. It was a consent decree and concerned a piece of land of which the decree-holders were given a share by its terms. The decree was passed in 1923. In 1925 one of the decree-holders, Babamiya, made an application to have the decree executed. In the course of that application Babamiya stated:

The plaintiff No. 2 has relinquished his right over the property in question when the suit was going on. Therefore the first plaintiff alone has given this darkhast. 'The order made on the application was:

Applicant writes that plaintiff No. 2 has relinquished his rights over the property in suit. He should put in papers in support of that statement.

2. Some months after a purshis was put in by plaintiff No. 2 to the following effect:

The decree in the above case has been passed in favour of plaintiffs Nos. 1 and 2. I have no objection if plaintiff No. 1 takes possession of the lands belonging (awarded) to me. The plaintiff No. 1 should prosecute the execution proceeding of this darkhast, and the plaintiff No. 1 should take possession of the property awarded to me and plaintiff No. 1. And I have no objection if the plaintiff No. 1 recovers the amount of costs recoverable therein. This is the ' pursis'.

3. The proceedings went on, and the judgment-debtor was served with a notice, and an order was made transferring the execution application to the Collector. Thereafter, however, default was made by the decree-holder in prosecuting the application, and it was dismissed. A second application was made in 1928. Its validity was questioned by the other side. Two issues were framed, (1) 'Whether the plaintiff No. 1 alone is entitled to execute the decree, and (2) If not, whether the present darkhast is tenable and is in time?' Both these issues were found in the affirmative. The learned Subordinate Judge's view was that the purshis, which I have already quoted, in extenso, was, in fact, an assignment of the rights of the original plaintiff No. 2 to plaintiff No. 1. He held that the lack of stamp and registration could be cured, and directed the darkhastadar to pay the stamp duty and penalty on the amount evidenced by the purshis. On appeal to the learned District Judge, he differed from the learned Subordinate Judge's conclusion. His view was that by Exh. 13, the darkhastdar had clearly stated that he had become the exclusive owner of the decree, and, therefore, that it did not lie in his mouth to say that he presented the darkhast in order to execute the decree for the benefit of all the decree-holders. The decree-holder had taken a definite stand that his co-decree-holder had assigned his interest to him, and wanted to execute the decree for the benefit of himself alone, and hence it was incumbent upon him to prove the assignment alleged by him.

He had not examined the decree-holder No. 2 to prove the alleged assignment, but had relied merely upon the 'pursis' put in by him in the previous darkhast. That such a 'pursis' was put in, in that darkhast, was admitted by the appellant, and that it was not known whether that darkhast was presented by both the decree-holders or by only one of them. That as that darkhast was dismissed for non-prosecution that 'pursis' had spent itself as soon as the darkhast was disposed of, and that there was nothing in the 'pursis' to indicate that the decree-holder No. 2 had intended to give up his interest in the land, or the amount of costs in favour of the decree-holder No. 1, and that in no circumstances could such a document be spelt into an assignment of the interest of the second decree-holder to the decree-holder No. 1.

4. On his view this led to the inevitable conclusion that the first application for execution was not in accordance with law, and could not keep the decree alive so as to allow the darkhast he was dealing with to proceed. He accordingly reversed the lower Court's order and dismissed the execution application with costs.

5. Mr. Justice Barlee, who heard the appeal, dismissed it. His view was that it was conceded that the darkhast to be valid must be so either under Rule 15 or 16 of Order XXI, that Rule 16 could not apply, because there was no assignment by the plaintiff-appellant No. 2 of his right in the land, and he agreed with the District Judge that the purshis was not an assignment of his right. As to Rule 15, which permits a person in whose favour a joint decree has been passed to apply for the execution of the whole decree, such an application would have been in order, but unfortunately for the appellant he did not appear to have had good advice, and when challenged by the defendant, put in a counter-written statement in which he stated that appellant No. 2 had given up his right in the property to him. This, in Mr. Justice Barlee's view, justified the judgment-debtor in saying that the darkhast cannot be looked upon as a darkhast presented by one joint decree-holder on behalf of all, and that, therefore, the conclusion that it should be dismissed was justified.

6. We agree with the learned District Judge in thinking that in fact there was no assignment. The statement by the decree-holder No. 2 in the purshis does not, we think, amount to a relinquishment, or to an assignment of his interest in the decree. All it says, literally, is that the decree-holder No. 2 is willing that the execution application should be carried on by the other decree-holder, and the reference as to possession was unnecessary, for the only mode of executing this particular decree was by obtaining possession of the land it awarded to the two decree-holders. There being no relinquishment or assignment, the grounds on which the original Court proceeded are no longer of any relevance.

7. Mr. Gumaste's argument against the regularity of the first application for execution has been based on certain cases of this Court. The most important of them is Genaram v. Hantnantram (1925) 28 Bom. L.R. 761 It has been held in that case that an assignment, pending a suit, as was alleged in the original application for execution, would be invalid in any case, and that an assignment made after lodging the application for execution could not possibly validate it, since it is a condition precedent to the making of such an application, where there has been an assignment under Rule 16 of Order XXI. But if, as we think, there has been neither an assignment nor a relinquishment under this rule, the argument relied on by Mr. Gumaste would not be valid. While, further, it has been pointed out by Mr. Murdeshwar that the Bombay case in question deals not with an assignment by one of two decree-holders, but with an assignment by a decree-holder to a person not concerned in the suit before such an assignment had been made.

8. The main question, therefore, remains, and it is whether the first execution application in this case is one in accordance with law. It was in fact mistaken, in that it relied on an alleged relinquishment, but Mr. Murdeshwar has relied on two authorities not cited before Mr. Justice Barlee which support his case that, even though this may have been so, that application for execution being one made by a person entitled to make it, would nevertheless be in accordance with law. One of these cases is Ghanaya v. Madho Parshad A.I.R. [1931] Lah. 600 The most important passage in the judgment of the learned Chief Justice of Lahore is as follows (p. 601):

Nor do I see any force in the contention that, as the application was made by one of two joint decree-holders, that fact should have been distinctly stated in the application; and that the omission to mention it invalidated the application. Now, Order XXI, Rule 15, provides that any one or more of the joint decree-holders, may apply for the execution of the whole of the decree for the benefit of them all; and it is nowhere laid down that the omission on the part of a decree-holder to state in his application the names of all the persons who are interested in the decree is such a defect as would invalidate the execution proceedings. Indeed, it has been laid down by a Division Bench of the Calcutta High Court in Nuzhat-ud-Dowla v. Bern Madhab A.I.R. [1926] Cal. 811 that such an omission does not render the execution proceedings invalid. It is however in the discretion of the Court whether or not notice should be given to the other decree-holders or to the judgment-debtor before making an order for execution, though it is not obligatory on the Court to issue such notice. Nor is it for the judgment-debtor to raise an objection that sufficient steps have not been taken to safeguard the interest of the other decree-holders, when they themselves have not made any complaint : vide Amirali v. Gopaldas (1919) 54 I.C. 924

9. The circumstances here seem to us to be covered by this ruling. The first decree-holder had, it is true, misstated the grounds on which he alone was applying for execution, but the steps suggested by the learned Chief Justice were taken, and he was asked to produce some documents showing at least the consent of his fellow decree-holder, and he did so. This being so, it seems to us that so far as it went, the first application to execute the decree was in accordance with law. If this is so, the present application would admittedly be in time.

10. We, therefore, set aside the decrees of the two appellate Courts and remand the matter to the original Court directing execution to proceed after the amendments necessary to bring the application strictly in conformity with the rule in Order XXI, Rule 15, have been made by the applicant.

11. We think each party will have to bear his own costs in this Court and in the first appellate Court.

Divatia, J.

12. I concur.


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