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Purushottam Ganapath Mehata and ors. Vs. Rajaram Dhondichand Shaha - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberAppeal No. (B) 349 of 1956
Judge
Reported inAIR1965Kant59; AIR1965Mys59; ILR1964KAR294; (1964)1MysLJ325
ActsDeccan Agriculturists Relief Act; Limitation Act - Sections 20
AppellantPurushottam Ganapath Mehata and ors.
RespondentRajaram Dhondichand Shaha
Excerpt:
.....draft and by a on behalf of judgment-debtors since that draft was endorsed by a in favour of decree-holder - payment appearing in that way in hand-writing of a as duly authorized agent of judgment-debtor clearly amount to acknowledgment - a delivered draft to decree-holder towards amount of decree payable by judgment-debtor and he did so as pleader for judgment-debtor 1 - fund with aid of which draft was obtained was not fund of decree-holder but was fund of judgment-debtor1 - appeal dismissed. - code of civil procedure, 1908. section 96: [s.r. bannurmath & a.n. venugopala gowda, jj] regular first appeal court fee in appeal - suit for partition and separate possession - payment of court fee of rs.200/-on the plaint under section 35(2) dismissal of suit appealed against - payment..........which we are concerned in this appeal was one presented on january 20, 1954.it was stated by the decree-holder in the execution application that the execution application was within the time since there was an acknowledgment of the decree on august 14, 1951, through the payment of a sum of rs. 10,000/- paid by a certain mr. m.m. gandhi. this payment was denied by the judgment-debtor and so the matter was posted for evidence on march 10 1955 to april 2, 1955. there were at least 20 adjournments of the proceedings and the date of 21st adjournment was march 16, 1956 on which date, the judgment-debtors were absent and their pleader retired for want of instructions.(2) the decree-holder examined himself and in addition, he examined mr. m.m. gandhi, who according to the decree-holder, had to.....
Judgment:

Somnath Iyer, J.

(1) The only question involved in this appeal is one of limitation and it arises in this way. On November 30, 1948, in proceedings commenced under the provisions of the Deccan Agriculturists Relief Act there was a decree. That decree provided for two matters. It provided for the redemption of a mortgage created either by the plaintiffs or their predecessors-in-title. The other matter of which it provided for was a sale, if there was no redemption, for the recovery of a sum of Rs. 11,403-9-0 together with interests thereon determined to be payable to the defendant in that suit. The plaintiffs did not redeem the mortgage and so, the defendant executed the decree. The execution application with which we are concerned in this appeal was one presented on January 20, 1954.

It was stated by the decree-holder in the execution application that the execution application was within the time since there was an acknowledgment of the decree on August 14, 1951, through the payment of a sum of Rs. 10,000/- paid by a certain Mr. M.M. Gandhi. This payment was denied by the Judgment-debtor and so the matter was posted for evidence on March 10 1955 to April 2, 1955. There were at least 20 adjournments of the proceedings and the date of 21st adjournment was March 16, 1956 on which date, the judgment-debtors were absent and their pleader retired for want of instructions.

(2) The decree-holder examined himself and in addition, he examined Mr. M.M. Gandhi, who according to the decree-holder, had to paid a sum of Rs. 10,000/- on August 14, 1951 towards the decree. The evidence given by the decree-holder was that the payment of a sum of Rs. 10,000/- was made by Mr. M.M. Gandhi on August 14, 1951 by means of a bank draft drawn on the District Central Co-operative Bank and which was endorsed in his favour by Mr. Gandhi.

(3) Mr. Gandhi who was examined by the decree-holder as his witness gave somewhat different kind of evidence. He admitted that he purchased a draft from the District Central Co-operative Bank for a sum of Rs. 10,000/- and that he endorsed it in favour of the decree-holder. But he stated that the money paid into the Bank for obtaining the draft from it, was not the money paid by Judgment-debtor 1. His evidence was that Judgment-debtor 1 had paid a sum of Rs. 10,000/- to the decree-holder on the date and that the decree-holder paid that money back to Mr. Gandhi asking him to obtain a draft for that sum of money from the Bank and that he did so.

(4) The Civil Judge refused to believe the evidence given by Mr. Gandhi and accepted that given by the decree-holder and so recorded a finding that the execution application was not barred by limitation. He directed the execution to proceed. The Judgment-debtors appeal.

(5) It was urged by Mr. Albal, the learned Advocate appearing for the Judgment-debtors, that the conclusion reached by the Civil Judge that Mr. Gandhi paid a sum of Rs. 10,000/- on behalf of the Judgment-debtor and as an agent in unsupportable. He next complained that the executing Court had unreasonably refused to grant an adjournment on March 16, 1956 when the case was closed.

(6) It does not appear to us that the complaint that there was unreasonable refusal of an adjournment can succeed. The decree was an old decree of the year 1948 and as rightly pointed out by Mr. Krishnamurthy a large number of adjournments were granted by the Court some times at the request of one side and sometimes at the request of the other. On March 16, 1956 when the matter was ultimately posted, the Judgment-debtors remained absent and their pleader retired for want of instructions. No reason were assigned in support of the request for an adjournment, and in our opinion, the Court below had no other alternative but to refuse the adjournment prayed for and proceed to dispose of the matter.

(7) In support of the other submission that Mr. Gandhi was not the agent of the Judgment-debtors so as to bring the payment within the provisions of Section 20 of the Limitation Act. Mr. Albal depended entirely upon the testimony given by Mr. Gandhi which, according to him, fully supported the case of the Judgment-debtors. The Civil Judge thought that the evidence of Mr. Gandhi was unacceptable since it appeared to the Civil Judge a little strange that the decree-holder having received Rs. 10,000/- from judgment-debtor should hand over that sum to Mr. Gandhi so that Mr. Gandhi might obtain a draft from the Bank. It was elicited from Mr. Gandhi that he could not assign any reason why the decree-holder could not himself pay the amount into the Bank and obtain a draft from the Bank with out the instrumentality of Mr. Gandhi.

When the decree-holder referred to the payment of this sum of Rs. 10,000/- through a draft, the judgment-debtors in their statement of objection never raised the plea that the sum of money had been paid direct to the decree-holder and that the draft was not a draft obtained for payment towards the decree. On the contrary, their plea was that no payment was made towards the decree and therefore the execution application was out of time.

(8) The question whether the payment was made by Mr. Gandhi or whether it was made by Judgment-debtor 1 direct, assumes importance for the reason that if the payment was made by Judgment-debtor 1 direct, it would not amount to an acknowledgment within the meaning of Section 20 since the payment would not then appear in the handwriting of judgment-debtor 1. But if, on the contrary, the payment was through a draft and by Mr. Gandhi on behalf of the Judgment-debtors, since that draft was endorsed by Mr. Gandhi in favour of the decree-holder the payment appearing in that way in the hand-writing of Mr. Gandhi if he was duly authorised agent of the Judgment-debtor would clearly amount to an acknowledgment. (His Lordship after discussing the relevant evidence concluded:)

(9-12) In our opinion, the finding of the Civil Judge that Mr. Gandhi delivered the draft to the decree-holder towards the amount of the decree payable by the Judgment-debtors and that he did so as the pleader for Judgment-debtor 1 is a correct finding.

(13) But it does not appears to us that the Civil Judge was right in making what we consider to be a harsh stricture on Mr. Gandhi. The Civil Judge says:

'I have no doubt that the pleader has tried to prevent facts in order to oblige his client.'

That Mr. Gandhi perverted the facts to oblige his client is an observation for which there is really no foundation. It is not improbable that there was some slight misunderstanding of the real position by Mr. Gandhi and that his evidence is attributable to some such confused state of mind. It may be that the evidence of Mr. Gandhi does not eliminate the interpretation that at one stage money was paid to the decree-holder in cash and that it was taken back so that a draft might be given to the decree-holder instead, so that there could be evidence of payment. If Mr. Gandhi got into possession of funds with the assistance of which he obtained the draft in that way, it cannot be said that he gave false evidence to oblige his client. What is however clear is that the fund with the aid of which the draft was obtained was not the fund of the decree-holder but was the fund of the judgment-debtor 1 and that it is not so is not what is very clear from the evidence of Mr. Gandhi and in that view of the matter it was not right on the part of the Civil Judge to accuse Mr. Gandhi of giving false evidence.

(14) On behalf of the appellants an application has been made to us for reception of additional evidence. Mr. Albal has explained to us that the purpose of production of this additional evidence was the disestablishment of the story of the decree-holder that Mr. Gandhi was the pleader for the Judgment-debtor and therefore, their agent. It was explained to us by Mr. Albal that Mr. Gandhi never appeared for the Judgment-debtors at any stage of the litigation. He explained that when the suit under the Deccan Agriculturists' Relief Act was instituted, although it was brought in the name of the plaintiffs the plaint was nevertheless signed and verified by a certain Mr. J.M. Gandhi another pleader of Chikodi in the role of a 'Vahiwatdar' appointed by the Court. It was further explained that an objection was raised to the frame of the suit and that the objection having been upheld, the plaintiffs themselves signed and verified the plaint.

But it was submitted that Mr. M.M. Gandhi who was examined by the decree-holder in the execution proceedings held a vakalath only from Mr. J.M. Gandhi and that after the plaintiffs themselves signed and verified the plaint, they never gave any Vakalath to Mr. M.M. Gandhi and that therefore, Mr. M.M. Gandhi who delivered the draft to the decree-holder was never the agent of the Judgment-debtors who were the plaintiffs in the redemption suit.

(15) This objection was never raised in the Court below. It was never contended that Mr. M.M. Gandhi was not the pleader for the plaintiffs. On the contrary Mr. M.M. Gandhi himself, in his evidence, stated that he was the pleader for the firm of the plaintiffs, since it was obvious that the words 'defendant firm' appearing in the deposition are a clear mistake for the 'plaintiffs firm'.

(16) In that view of the matter it does not appear to us that we should allow the appellants to produce additional evidence in the case since the evidence would have been necessary only if we had not found it possible to dispose of the appeal without evidence. Moreover, no acceptable reason has been assigned as to why these documents which are tendered as additional evidence, were not produced in the Court below.

(17) Even otherwise it is clear from the provisions of S. 20 of the Limitation Act that the agent referred to in that section need not be an agent appointed in writing. The question whether the person making the acknowledgment was or was not the agent duly authorised in that behalf is a question to be decided on the basis of the surrounding facts and circumstances of each case as pointed out in National Bank of Upper India Ltd. v. Bansidhar, ILR 5 Luck I : (AIR 1929 PC 297). Even if it be possible to say that Mr. M.M. Gandhi was not appearing for the plaintiffs by a formal vakalath executed by them once again in addition to the vakalath executed by Mr. J.M. Gandhi, it is clear from all the circumstances and the evidence in the case which the Civil Judge believed and which we also believe that when the draft was delivered to the decree-holder by Mr. M.M. Gandhi, he did so as the duly authorised agent of the plaintiffs.

(18) This appeal fails and is dismissed with costs. We also direct that the remarks made against Mr. M.M. Gandhi be expunged from the record.

(19) Appeal dismissed.


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