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Gandhi Vadilal Chhaganlal Vs. Gandhi Manaklal Chhaganlal - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported inAIR1923Bom41(1); 79Ind.Cas.489
AppellantGandhi Vadilal Chhaganlal
RespondentGandhi Manaklal Chhaganlal
Excerpt:
execution of decree - decree based on award--execution, whether can be refused on ground of non-payment of court-fees--court-fees, whether payable. - .....at the time when the decree was passed an order could have been made for the payment of court-fees before execution could be taken out by defendant no. 2. the decree has been drawn up, and we see no reason whatever to hold that it is not a proper decree. it seems to us that defendant no. 2 is admitted to the execution thereof. 'we do not think that for such a plain position any authority is needed, but we may refer to the decision in nawab mir sadrudin v. nawab nurkdin 29 b. 79 : 6 bom. l.r. 834 which puts the question beyond doubt. we allow the appeal, set aside the order made by the lower court and remit the darkhast to that court in order that the decree may be executed in accordance with law. the appellant is entitled to the costs of this appeal. the costs in the lower court.....
Judgment:

1. This appeal arises out of execution proceedings. Defendant No. 2 filed a darkhast in the Court of the First class Sub-Judge at Nadiad to recover Rs. 1,157-14-0 payable to him under the decree in Suit No. 753 of 1915. The learned First-class Subordinate Judge has dismissed the application for execution on the ground that there is no decree, apparently because the necessary Court fees had not been paid. It does not appear from the order made by the learned Judge as to how the payment of the Court-fees under the circumstances of this case was necessary, nor does it appear why this decree, which in form is a complete decree, should not be treated as a decree capable of execution. Apparently, there is no provision with regard to the payment of Court-fees in respect of the sum in question in the decree: and on the facts, so far as they have been elicited in the case and the arguments, it is by no means made dear to us as to whether any Court-fees would be payable at all in respect of this sum. In the absence of further information as to the circumstances Under which the. decree on the award came to be passed, we do not desire to express any opinion as to. whether at the time when the decree was passed an order could have been made for the payment of Court-fees before execution could be taken out by defendant No. 2. The decree has been drawn up, and we see no reason whatever to hold that it is not a proper decree. It seems to us that defendant No. 2 is admitted to the execution thereof. 'We do not think that for such a plain position any authority is needed, but we may refer to the decision in Nawab Mir Sadrudin v. Nawab Nurkdin 29 B. 79 : 6 Bom. L.R. 834 which puts the question beyond doubt. We allow the appeal, set aside the order made by the lower Court and remit the darkhast to that Court in order that the decree may be executed in accordance with law. The appellant is entitled to the costs of this appeal. The costs in the lower Court will be costs in the darkhast.


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