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Ganpatibhatta Umamaheshwarbhatta Vs. Devappa Shankarnarayan Havik - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case NumberSecond Appeal No. 337 of 1921
Judge
Reported inAIR1923Bom30(1); (1922)24BOMLR442; 76Ind.Cas.895
AppellantGanpatibhatta Umamaheshwarbhatta
RespondentDevappa Shankarnarayan Havik
DispositionAppeal allowed
Excerpt:
.....it seems contrary to the ordinary meaning of words that when a darkhast, which is issued to attach property, is dismissed, still the attachment should continue. - [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...........the moveable property of the judgment-debtor. that was dismissed for want of prosecution. then the present darkhast of 1916 was filed praying that the properties now in dispute should be sold for the balance of the decree.4. it is not an easy matter to decide whether property remains under attachment when the darkhast is struck off. strictly speaking if the darkhast is struck off the attachment would go with it. it seems contrary to the ordinary meaning of words that when a darkhast, which is issued to attach property, is dismissed, still the attachment should continue. but in this case we have to consider the conduct of the judgment-creditor, and his transferee, the present applicant. we are satisfied in this case that the attachment went either under the order of the court or ceased to.....
Judgment:

Norman Macleod, C.J.

1. The plaintiff in this suit got a decree so far back as 1908 for a certain sum of money which was directed to be payable by instalments. If two instalments were in arrears the decree could be executed for the whole amount. But the decree also directed that 'the immoveable property of the defendant may be got attached and kept.' We do not know what meaning could be attached to those words. Clearly it was ultra vires of the Court if it was intended that the defendant's property should be attached before default had been made in the payment of the instalments. It seems that the plaintiff immediately after the decree was passed took out a Darkhast on 14th August 1908 under which the Court ordered the lands to be attached, but struck off the Darkhast. On the 21st June 1910, the defendant granted a mulgeni lease to the present opponents Nos. 2 and 3. Prior to that the decree-holder had bought from the judgment-debtor a considerable portion of the property which he purported to have attached in 1908, and the terms of the sale provided that in addition to the lands sold the defendant was to pay a small balance to the decree-holder at his convenience within a short time.

2. On the 25th July 1910, the decree-holder took out another Darkhast praying for the recovery of the balance by attachment and sale of the lands in dispute, the prayer being to attach and sell by auction the lands in dispute which were already attached. The property was put up for sale by the Collector, but, as there was no bid, the Darkhast was dismissed on the 20th March 1912.

3. Then the decree-holder transferred the decree to the present applicant who presented a Darkhast against the judgment-debtor, and that application prayed for the attachment and sale of the lands in dispute. An order for attachment was made, but as no Bhatta was paid the Darkhast was dismissed with costs. Another Darkhast was filed in 1915 praying for the attachment of the moveable property of the judgment-debtor. That was dismissed for want of prosecution. Then the present Darkhast of 1916 was filed praying that the properties now in dispute should be sold for the balance of the decree.

4. It is not an easy matter to decide whether property remains under attachment when the Darkhast is struck off. Strictly speaking if the Darkhast is struck off the attachment would go with it. It seems contrary to the ordinary meaning of words that when a Darkhast, which is issued to attach property, is dismissed, still the attachment should continue. But in this case we have to consider the conduct of the judgment-creditor, and his transferee, the present applicant. We are satisfied in this case that the attachment went either under the order of the Court or ceased to exist under the provisions of Order XXI, Rule 57. It does not seem to make very much difference. It certainly seems extraordinary that in 1922 we should have to decide whether a mulgeni lease granted in 1910 is void or not. Certainly the present applicant has only himself to thank for his own delay in not prosecuting the execution of his decree with due diligence. The appeal must be allowed and the Darkhast dismissed with all costs on the applicant.


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