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Bindu Govind Naik Kurbet and anr. Vs. Hanmant Govind Bhat and anr. - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1924Bom71; 79Ind.Cas.407
AppellantBindu Govind Naik Kurbet and anr.
RespondentHanmant Govind Bhat and anr.
Excerpt:
limitation act (ix of 1908), schedule i, article 182 - mortgage-decree--application to main decree final--step-in-aid of execution limitation, operation of. - - 31st march 1914. on failure to pay any one instalment in time the decree allowed sale of the mortgage property or a sufficient portion thereof to recover the amount 'of the instalment overdue......portion thereof to recover the amount 'of the instalment overdue. the creditors sought to make the decree final on default instead of applying for sale. apparently, the court, instead of pointing out the error, made orders from time to time as instalments became due for making the decree final with regard to a particular instalment. on the 80th october 1919 the creditors applied to make the decree final as regards the instalment due on 31st march 1917. that application coming before a different judge was rejected. the plaintiffs applied for execution on the 26th july 1920 with regard to the four 'instalments then overdue; but that darkhast was dismissed for default on 15th february 1921. on the 8th july 1921 another darkhast was filed for those four instalments and the fifth which fell.....
Judgment:

1. This case belongs to that numerous class of cases in which difficulties arise in execution of an instalments decree. The decree passed on the 18th April 1913 for Rs. 12,359-1-0 was payable by yearly instalments of a thousand rupees, the first of which was payable on the. 31st March 1914. On failure to pay any one instalment in time the decree allowed sale of the mortgage property or a sufficient portion thereof to recover the amount 'of the instalment overdue. The creditors sought to make the decree final on default instead of applying for sale. Apparently, the Court, instead of pointing out the error, made orders from time to time as instalments became due for making the decree final with regard to a particular instalment. On the 80th October 1919 the creditors applied to make the decree final as regards the instalment due on 31st March 1917. That application coming before a different Judge was rejected. The plaintiffs applied for execution on the 26th July 1920 with regard to the four 'instalments then overdue; but that darkhast was dismissed for default on 15th February 1921. On the 8th July 1921 another darkhast was filed for those four instalments and the fifth which fell due in 1921. Execution was granted for the instalments due in 1918, 1919 and 1920 and 1921 and the final order made in April 1922. But execution with regard to the instalment for 1917 was disallowed. We think that there is no rigid rule to be laid down in these oases. We have already held in Gulappa Rudrappa v. Arava 63 Ind. Cas. 844 : 23 Bom. L.B. 1013 : 46 B. 269 : (1922) A.I.E. (B.) 118. that an application to make a decree final may in one case be considered as a step-in-aid although it may in other oases be not so. But here, considering all the facts of the case, we think that the application of 30th October 1919 was a step-in-aid which started a new period of limitation running. Therefore, the application of 26th July 1920 was in time with regard to the instalment due in 1917 and consequently the present darkhast is also in time. The appeal, therefore, is allowed and the darkhast should proceed for the full amount of Bs. 5,000 with costs.


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