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Virappa Govindappa Konraddi Vs. Basappa Virbhadrappa Kulkarni - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case Number First Appeal No. 351 of 1924
Judge
Reported in(1925)27BOMLR1511
AppellantVirappa Govindappa Konraddi
RespondentBasappa Virbhadrappa Kulkarni
DispositionAppeal allowed
Excerpt:
.....to a party, who does not take advantage of the right of appeal granted him by the civil procedure code, to move the court to exercise its powers under section 151 of the code. - section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge..........and it was transferred to the collector for further execution under section 68, civil procedure code. the plaintiffs might have appealed against that order. but instead of doing that, they made a miscellaneous application to the judge praying that the defendants' darkhast should be dismissed. we do not know how it was competent to the judge to entertain that application. it is suggested now that he could deal with it under section 151 of the code. but it certainly is not intended that where a party does not take advantage of the right of appeal granted him by the code that he should be allowed to come to the court and ask the court to exercise its powers under section 151.2. we think, therefore, that the judge was not competent to dismiss the darkhast on this application. the appeal.....
Judgment:

Norman Macleod, Kt., C.J.

1. The defendants applied for the execution of the consent decree in suit No. 380 of 1911), dated November 22, 1920, whereby it was ordered that the plaintiffs should pay to defendants Nos. 1-5 Rs, 13,000, by instalments. If the plaintiff's could not pay the amount, the defendants were entitled to recover the amount by sale of the property in suit which was charged with payment of the decree. The property was sold and the sale proceeds were not sufficient to satisfy the decree. Thereupon the defendants applied for the attachment of certain other property belonging to the plaintiffs. On October 13,1923, an order was made and it was transferred to the Collector for further execution under Section 68, Civil Procedure Code. The plaintiffs might have appealed against that order. But instead of doing that, they made a miscellaneous application to the Judge praying that the defendants' darkhast should be dismissed. We do not know how it was competent to the Judge to entertain that application. It is suggested now that he could deal with it under Section 151 of the Code. But it certainly is not intended that where a party does not take advantage of the right of appeal granted him by the Code that he should be allowed to come to the Court and ask the Court to exercise its powers under Section 151.

2. We think, therefore, that the Judge was not competent to dismiss the darkhast on this application. The appeal must be allowed. The darkhnst must proceed. The appellant is entitled to his costs throughout.


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