Skip to content


Khushalchand Mohanlal Marwadi Vs. Dada Bhika Pawar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 1525 of 1952
Judge
Reported in(1954)56BOMLR571
AppellantKhushalchand Mohanlal Marwadi
RespondentDada Bhika Pawar
Excerpt:
.....court upholding decision of collector and striking off darkhast in 1943--subsequent application by decree-holder in respect of judgment-debt in 1947--whether order passed by executing court in 1943 an administrative order--application of 1947 whether barred by limitation.;a darkhast was filed by the decree-holder on july 18, 1941, in execution of a decree passed on june 30, 1932, against an agriculturist within the meaning of the dekkhan agriculturists' relief act, 1870. the. decree was sent to the collector for execution under section 22 of the act, but the darkhast was returned by the collector to the executing court on the ground that there was no land which was not required for the support of the debtor and the members of his family which he could take possession of and deal with as..........against an agriculturist within the meaning of the dekkhan agriculturists' relief act, and the decree-holder filed a darkhast, being darkhast no. 45 of 1941, in, respect of four lands of the judgment-debtor. this darkhast was transferred by the executing court to the collector for execution. under section 22 of the dekkhan agriculturists' relief act the power of the executing court to execute a decree against an agriculturist is a limited power and the only power is to direct the collector to take possession, for any period not exceeding seven years, of any such property of the judgment-debtor to the possession of which he is entitled, and which in the opinion of the collector is not required for his support and the support of the members of his family dependent on him, and the.....
Judgment:

M.C. Chagla, C.J.

1. The petitioners filed an application under the Bombay Agricultural Debtors Relief Act on July 14, 194.7, in respect of a judgment debt. Both the Courts below have held that the judgment debt was barred by limitation and therefore the application was not maintainable.

2. Now, the decree out of which the judgment debt arises was passed on June 30, 1982. It was a decree against an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, and the decree-holder filed a darkhast, being darkhast No. 45 of 1941, in, respect of four lands of the judgment-debtor. This darkhast was transferred by the executing Court to the Collector for execution. Under Section 22 of the Dekkhan Agriculturists' Relief Act the power of the executing Court to execute a decree against an agriculturist is a limited power and the only power is to direct the Collector to take possession, for any period not exceeding seven years, of any such property of the judgment-debtor to the possession of which he is entitled, and which in the opinion of the Collector is not required for his support and the support of the members of his family dependent on him, and the Collector shall thereupon take possession of such property and deal with the same for the benefit of the decree-holder in the manner provided by Section 29. Now, on October 2, 1948, the darkhast was returned by the Collector to the executing Court with an endorsement by the Collector that two out of the four lands in respect of which execution was sought were not in possession of the judgment-debtors and that two other survey numbers, were necessary for their maintenance and could not be leased out for the realisation of the decretal dues. Therefore, the view of the Collector was that there was no land which was not required for the support of the debtor and the members of his family which he could take possession of and deal with as required by Section 29. On December 15, 1943, the darkhast came up before the executing Court for orders and this is the order that the learned Judge passed : 'Papers arc returned by the Collector holding that there is no surplus property which can be let out. Therefore darkhast is disposed of. Costs allowed.' Now, the rojnama shows that the decree-holder's pleader was present. Mr. Tarkunde says that the rojnama is not signed and it is difficult to believe that the pleader of the plaintiff would be present without any notice. I am not prepared to assume that the rojnama was not properly kept, but it is unnecessary to decide whether the plaintiff's pleader was present or not because the, decision I have come to will be the same whether the plaintiff's pleader was present or not.

3. Now, prima facie, when the application for adjustment of debts was made on July 1.4, 1947, the judgment debt was barred, because the application was made 12 years after the decree became executable, and also on the other ground that the darkhast was filed more than three years after the last darkhast which was disposed of in 1943. Mr. Tarkunde is right when he says that the learned Judge's reasoning that the debt adjustment Court is not an executing Court and a proper application for execution should have been made to the executing Court is not, with respect, correct, because what the debt adjustment Court has got to consider is whether on the material date the debt was subsisting or was time-barred. It is not necessary for the decree-holder to make an application for execution if he could satisfy the Court that on the material date he could have executed the judgment debt. Therefore, the test is not whether an application for execution is pending or not, but whether on July 14, 1947, there was a judgment debt which the decree-holder could have realised. If he could have made an effective application for execution in respect of that debt, then that was a debt which could have been adjusted by the Debt Adjustment Court. But the real question is whether on the material date the debt was barred by limitation or not. What Mr. Tarkunde contends on the strength of the authorities, to which I shall presently refer, is that the order passed by the learned Judge on December 15, 1943, was not a judicial order. It was an administrative order, and what was really done was that for the convenience of the Court the darkhast was removed from the file. Therefore, it was open to the decree-holder by making a subsequent darkhast at any time to revive that darkhast. The authorities show that two conditions are necessary before it could be said of a darkhast which is disposed of that the order made thereon is not a judicial but an administrative order. In the first place, there should be no default on the part of the decree-holder which has resulted in. the darkhast being struck off, and in the second place something must remain to be done under the darkhast which could have been done by the executing Court and which the executing Court has failed to do. These two principles will become apparent when we look at the cases on which Mr. Tarkunde has relied.

4. The first is the decision in Yakub Ali v. Durga Prasad I.L.R (1915) All. 518. In that case there was an application for execution for sale of certain property and the decree was sent to the Collector for execution. The Collector found that part of the property sought to be sold belonged to persons other than the judgment-debtor and therefor he sent the decree back to the Subordinate Judge for orders. The Subordinate Judge called upon the pleader for the decree-holders to make a statement and no statement having been made the application was struck off and the file was sent to the record. On these facts the Allahabad High Court held that a subsequent application made for execution more than three years after the first application for execution was within time as it was an application to revive the execution proceedings which had been suspended and not dismissed. Now, as is clear from the judgment of the Court, the Court took the view that when the Collector reported that part of the property could not be sold because it belonged to persons other than the judgment-debtor, the Court should have directed the Collector to sell that part of the property which admittedly belonged to the judgment-debtor. The Court further pointed out that the matter was not called on for hearing on. the last day fixed for receiving the statement from the pleader. It also appears that neither the decree-holder nor the pleader were aware of the penalty which would be imposed if they failed to make the statement. It was on these special facts that the Allahabad High Court came to the conclusion that it did. But it would be noticed, and that is the most important principle appearing from the decision, that the darkhast was not disposed of in the sense that something remained to be done which could have been done in the darkhast itself.

5. The next case is Chowdhury Ajodhya Nath Pahary v. Chowdhury Srinath Chandra, Pahary (1921) 26 C.W.N. 338. In that case the decree-holder applied for execution and he paid the necessary process fees as directed by the Court. The judgment-debtor objected to the issue of the execution on the allegation that the decree had been satisfied out of Court. On the date fixed for hearing the judgment-debtor's objection was. dismissed for default and the Court proceeded to pass the following order :.the decree-holder has no objection to his case being dismissed provided he gets his costs. The execution case is dismissed for default. The decree-holder will get his costs.

This order was held to be not a judicial but an administrative order, and in the judgment it is pointed out that as soon as the objection was abandoned by the judgment-debtor it became the duty of the Court to proceed with the application for execution, inasmuch as the decree-holder had done everything that he was required to do to enable the Court to proceed with the case. It is because of this that the Calcutta High Court came to the conclusion that the darkhast was not dismissed but merely suspended by the administrative order made by the Court.

6. The next case is Sarada Sundari v. Jabbar Ali A.I.R [1930] Cal. 331. In that case a property was advertised for sale and the Court made an order directing the Nazir to sell the property at a particular date. The Nazir made a report that the decree-holder was absent and therefore he did not proceed with the sale. On that the Court dismissed the darkhast for default taking the view that the decree-holder had not taken any steps to proceed with it, and the question that arose was whether a subsequent application for execution made more than three years thereafter was within time, and the Calcutta High Court held that the Nazir having been directed to hold the sale it was not obligatory upon the decree-holder to be present and therefore it could not be said that there was any default on the part of the decree-holder, and even in the absence of the decree-holder the Nazir should have proceeded to hold the sale. Under these circumstances the Calcutta High Court came to the conclusion that the order should be treated as an order for removing the darkhast from the file of the Court for the convenience of the Court. Here again, obviously, the darkhast should have been proceeded with as directed by the Court, and it was not proceeded with through no fault on the part of the decree-holder.

7. The final case on which reliance is placed is Abdul Azim Sahib v. Chakkan Chettiar I.L.R.(1934) Mad. 893. In that case the decree-holder applied for delivery of possession of properties which he had purchased at a Court auction and the properties comprised a house and certain lands. When the bailiff proceeded to deliver possession of the house to the decree-holder he was obstructed and the obstructionist contended that he had a share in the house. Thereupon the bailiff returned and sent his report to the Court. Thereupon the executing Court passed the following order : 'Possession was not given on account of obstruction. Petition dismissed.' Now, the Madras High Court, with respect, rightly took the view that the obstruction was by a third party and the third party also obstructed only with regard to a part of the property of which the decree-holder was seeking possession under his darkhast, and there was no reason why the bailiff should not have given possession to the decree-holder with regard to that part of the property in respect of which there was no obstruction at all. Then the decree-holder filed a petition for delivery of possession against the judgment-debtors and the plea taken was that that petition was barred by limitation, and the Madras High Court held that the petition could be regarded as a petition for delivery of only the remaining share in the house as to which there never was an obstruction and also for possession of the lands, and to the extent of the lands and a share in the house with regard to which there was no obstruction, the petition could be regarded as a continuation of the first application for execution which was never legally disposed of on merits, but only closed for statistical purposes.

8. Now, applying these principles to the facts of the present case, it is difficult to understand what remained to be disposed of after the Collector had made his report and the executing Court had struck off the darkhast. Mr. Tarkunde says that the Collector's report was that two out of the four lands mentioned in the darkhast were not in possession of the judgment-debtor and the other two lands were necessarily for his maintenance. According to Mr. Tarkunde, under Section 22 it did not matter whether these two lands were in possession of the judgment-debtor or not. What had to be considered was whether these were lands to the possession of which the judgment-debtor was entitled, and therefore the Collector was in error in applying a test which was not a proper test under Section 22. But whether the Collector was right or wrong, whether his view was erroneous in law or well founded, the decision that the Collector came to was that there was no surplus property which could be let out by him and to the income of which the decree-holder would be entitled in execution. That decision of the Collector was upheld by the executing Court, and on that decision being given there was nothing left which could be done under the darkhast. If the decision of the executing Court was wrong, then the only remedy that the decree-holder had was to appeal from that order. But inasmuch as he did not appeal from that order, that order became final and conclusive, and the effect of that order was that the decree-holder could not proceed to execute his decree against the four lands because in the opinion of the Collector it was not possible to lease out any of these lands because the requirements of Section 22 were not satisfied. It may be that the decision given by the executing Court was not due to any default on the part of the judgment-creditor, but that by itself is not sufficient for me to hold that the order made by the learned Judge on December 15, 1943, was merely an administrative order. The creditors have got further to satisfy me that on December 15, 1943, the Court could have done something more under the darkhast which it failed to do and it failed to do so because for reasons of convenience it did not proceed with the darkhast but put it on the file. It is impossible, in my opinion, to contend that the order passed by the learned Judge on December 15, 1943, was passed for administrative reasons. In view of the decision of the Collector, the only order that the Court could have passed was to dismiss the darkhast.

9. Therefore, in my opinion, the Courts below were right in the view that they took that the debt on which the creditors relied was time-barred and therefore no application in respect of that debt could be maintained by him under the Bombay Agricultural Debtors Relief Act. Rule discharged with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //