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Hasan Hassan Saheb Vs. Ramchandra Appaya Shanbhog - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 366 of 1927
Judge
Reported in(1929)31BOMLR355; 117Ind.Cas.526
AppellantHasan Hassan Saheb
RespondentRamchandra Appaya Shanbhog
Excerpt:
.....with law' within the meaning of article 182 of the indian limitation act 1908, although it is not signed and verified by the applicant but by his pleader in the suit. - [couto; m.l. pendse, jj.] in the first instance the order passed under s. 132(5) is an order of a summary nature and does not conclude the rights of the petitioners, because while passing the assessment order, it is always open to the petitioners to point out that the assets recovered in the search were not undisclosed to point out that the assetsrecovered in the search were not undisclosed income. secondly, the order passed under s. 132(5) is appealable under the provisions of the act and if there is any violation in the exercise of the power, then the proper remedy is to lodge an appeal before the appellate authority...........rule 11(2), of the code, as to the first of these objections we agree with the view taken by the learned subordinate judge and hold that it is untenable. coming to the second, the application in question was actually signed and verified by mr. sawkar, who was the decree-holder's pleader in the suit. the learned subordinate judge's view was that the darkhast proceedings being original proceedings the application has to be signed by the decree-holder, though it ia not necessary for his pleader to file a fresh vakalat when presenting it in court and that as this one was not eo signed by an authorised person, the application was not in accordance with law.4. we think, however, that the learned subordinate judge was in error on this point. the applications are made under order xxi, rule.....
Judgment:

Murphy, J.

1. In this case the learned Subordinate Judge has found that the application for execution is not in time because the immediately preceding one on which it depends to come within limitation was not made in accordance with law.

2. The decree under execution was passed on January 7, 1922, and the first application for execution was presented on January 7, 1925, that is, exactly on the last day of the period within which it would be within limitation. The present 'darkhast' was filed on October 19, 1926, and it was contended that it was in time, because it had been made within time of the previous one.

3. As against this, the other side has contended that the previous application for execution had not been made in accordance with law, on two grounds, one being that a copy of the decree and an inventory of the property had not been annexed to it: and the second that it had not been duly signed and verified by the decree-holder as required by Order XXI, Rule 11(2), of the Code, As to the first of these objections we agree with the view taken by the learned Subordinate Judge and hold that it is untenable. Coming to the second, the application in question was actually signed and verified by Mr. Sawkar, who was the decree-holder's pleader in the suit. The learned Subordinate Judge's view was that the darkhast proceedings being original proceedings the application has to be signed by the decree-holder, though it ia not necessary for his pleader to file a fresh vakalat when presenting it in Court and that as this one was not eo signed by an authorised person, the application was not in accordance with law.

4. We think, however, that the learned Subordinate Judge was in error on this point. The applications are made under Order XXI, Rule 11(2), which says:-

Save as otherwise provided by Sub-rule (I), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the Court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars.

which follow in the section. The requirement, therefore, is, that the person signing the application must satisfy the Court that he was acquainted with the facts of the case. In this case, the application was made by the pleader who had conducted the original proceedings, and who must necessarily have been acquainted with all the facts in connection with the application, and it has not been shown that he failed to satisfy the Court that he was not so acquainted. The presumption is the other way. We think that the application was made in accordance with law as it was sufficient for it to be signed and verified by the decree-holder's pleader, and, therefore, that the ground on which this application has been dismissed, that is, that it was not within limitation, fails.

5. Rule made absolute, order discharged. We direct the learned Subordinate Judge to hear and determine the application according to law. Respondent to pay the coats of this Court. The costs of the original hearing of the darkhast to be costs in the proceedings.


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