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IN THE HIGH COURT OF BOMBAY
Bhole R.R., J.
Appellants: Sakharchand Bhukandas Gujarathi
Vs.
Respondent: Punju Chintaman Wani and Ors.
A.F.A.D. No. 910 of 1964 Decided On: 01.02.1972
Counsels:
For Appellant/Petitioner/Plaintiff: A.T. Patil, Adv.
For Respondents/Defendant: M.R. Kotwal and V.S. Kotwal, Advs.
EXECUTION OF DECREE - CONTINUATION OF DARKHAST - SECTION 73 OF THE CIVIL PROCEDURE CODE - RATABLE DISTRIBUTION OF ASSETS - INTERPRETATION AND APPLICATION.
Fact of the Case:
The appellant obtained a money decree in 1924 and filed several darkhasts for its execution. In 1929, another decree-holder filed a darkhast against the same judgment-debtor and attached certain properties, including Survey Nos. 25/1, 32/1, and 33. The appellant filed a darkhast in 1932, claiming to attach Survey No. 55 of the judgment-debtor and also for rateable distribution of the proceeds from the sale of Survey Nos. 25/1, 32/1, and 33. This darkhast was disposed of without any final order after realizing part payment of the decree from the sale proceeds of Survey No. 55. In 1942, the appellant filed another darkhast, seeking to attach and sell Survey Nos. 25/1, 32/1, and 33. The trial court held that this darkhast was in continuation of the old darkhast and ordered rateable distribution of the proceeds from the sale of these properties. The judgment-debtor appealed, and the appellate court remanded the case back to the trial court to determine whether Survey Nos. 25/1, 32/1, and 33 were also the subject-matter of the old darkhast. The trial court found that they were, and the execution proceedings continued. The judgment-debtor appealed again, and the appellate court allowed the appeal, holding that the old darkhast had been disposed of and that the attachment of the properties in the other decree-holder's darkhast could not benefit the appellant.
Finding of the Court:
The High Court held that the appellate court's order allowing the judgment-debtor's appeal was not tenable because there had been no appeal against the earlier order of the same court remanding the case back to the trial court. The High Court also found that the trial court was correct in holding that the appellant's darkhast was in continuation of the old darkhast, as it had been disposed of without any fault on the appellant's part. The High Court further held that the appellant was entitled to rateable distribution of the proceeds from the sale of Survey Nos. 25/1, 32/1, and 33, as his darkhast had been filed before the other decree-holder's darkhast was disposed of.
Issues: 1. Whether the appellant's darkhast was in continuation of the old darkhast. 2. Whether the appellant was entitled to rateable distribution of the proceeds from the sale of Survey Nos. 25/1, 32/1, and 33.
Ratio Decidendi: 1. The High Court held that the appellant's darkhast was in continuation of the old darkhast because it had been disposed of without any fault on the appellant's part. The court relied on the provisions of Section 73 of the Civil Procedure Code, which provides for rateable distribution of the proceeds of execution sale among decree-holders who have applied for execution of their decrees against the same judgment-debtor. The court also relied on the decisions of the Bombay High Court and the Allahabad High Court, which held that where the execution of a decree has been suspended through no act or default of the decree-holder, he has a right to ask the court to revive and carry though the execution proceedings which have been suspended. 2. The High Court held that the appellant was entitled to rateable distribution of the proceeds from the sale of Survey Nos. 25/1, 32/1, and 33 because his darkhast had been filed before the other decree-holder's darkhast was disposed of.
Final Decision: The High Court allowed the appeal, set aside the order of the appellate court, and restored the order of the trial court, which had held that the appellant's darkhast was in continuation of the old darkhast and that he was entitled to rateable distribution of the proceeds from the sale of Survey Nos. 25/1, 32/1, and 33.
2. The appellant then filed darkhast No. 942 of 1942 on 2-9-42 with which we are concerned in this appeal. He prayed there that Survey Nos. 25/1, 32/1 and 33 of the judgment-debtor should be attached and sold. There the point arose whether it was in continuation of his old darkhast No. 745 of 1932, which was disposed of for no fault of the decree-holder because the judgment-debtor had raised a contention that the darkhast was time-barred. The trial Court before whom darkhast No. 942 of 1942 proceeded held that it was not time-barred; that, on the other hand, it was in continuation of old darkhast No. 745 of 1932 and ordered that the other decree-holder should be given notices as to realised in the old darkhast should not be awarded to the present appellant. The judgment-debtor went in appeal. The learned appellate Judge allowed the appeal and remanded the record an proceedings back with a direction to the trial Court to find with a direction to the trial Court to find out whether S. Nos. 25/1, 32/1 and 33 were also the subject-matter of darkhast No. 745 of 1932. If the question of reteable distribution of these survey numbers was also the subject-matter of the old darkhast then the instant darkhast with which we are concerned should be construed to be in continuation of the old darkhast. If that question was not the subject-matter in the old darkhast then the instant darkhast was time barred.
3. The trial Court on remand found that the three survey numbers were also the subject-matter in Darkhast No. 745 of 1932. Accordingly, therefore, the execution proceeded. There was an appeal against that order. The learned Assistant Judge, however, found that the order of the trial Court was not proper because according to him old darkhast No. 745 of 1932 of the decree-holder was disposed of on 24-6-1940 by attachment and sale of Survey No. 55 belonging to the judgment-debtor. He held that in view of this disposal the attachment of the three survey numbers in darkhast No. 929 of 1929 of the other decree-holder cannot come to the help of the appellant. It is in that view that he allowed the appeal and set aside the order of the trial Court.
4. The decree-holder, therefore, has come here in appeal. The first ground on which this appeal will have to be allowed is this : When the first Count before which the present darkhast was filed, held that the instant darkhast was in continuation of the old darkhast No. 745 of 1932, wherein it was requested that the assets of S. Nos. 25/1, 32/1 and 33 shall be ratably distributed, the judgment-debtor went in appeal. The first appellate Court allowed the appeal and remanded the papers back to the executing Court to find out again whether S. Nos. 25/1, 32/1 and 33 could be treated as attached in the old darkhast No. 745/1932. He also directed that if the answer to the first query by the exec
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