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HIGH COURT OF BOMBAY
CHAGLA, DIXIT, JJ.
Govind Sadashiv Pathak
Versus
Sadashiv Shivrao Nisal
Letters Patent Appeal No.20 of 1951., against decision of Bavdekar, J., in First Appeal No.671 of 1949
Decided On : 04-02-1954
LIMITATION ACT - EXECUTION OF DECREE - MAINTAINABILITY OF DARKHAST - TRANSFER OF DECREE - JURISDICTION OF EXECUTING COURT - APPLICATION FOR EXECUTION IN ACCORDANCE WITH LAW - GOOD FAITH - SECTION 14(2) OF THE LIMITATION ACT - INTERPRETATION.
Fact of the Case:
The appellant, a decree-holder, filed a suit in the Ahmednagar Court and obtained a money decree against the respondent, the judgment-debtor. The decree was ex parte and was later set aside. An ex parte decree was again passed, which was also set aside. The appellant applied for the transfer of the decree to the Poona Court, where the respondent had some property, and the Court made an order transferring the decree and issued the necessary certificate. The appellant filed a darkhast in the Poona Court for execution of the decree. This darkhast was disposed of. The appellant filed another darkhast for the execution of the same decree, which was also disposed of. A third darkhast was filed and disposed of for non-prosecution. A fourth darkhast was filed and disposed of after the respondent paid Rs.50 in part satisfaction of the decree. The appellant filed a fifth darkhast for the execution of the earlier decree, which was amended to include the revived decree. The appellant applied for the transfer of the revived decree to the Poona Court, which was granted. The appellant applied for another amendment of the darkhast to include the certificate of the revived decree. The executing Court ordered the execution to proceed. The respondent appealed, and the appeal was allowed, holding that the darkhast was not maintainable.
Finding of the Court:
The Court held that the darkhast was not maintainable because it was barred by limitation. The Court found that the appellant had not taken any steps under Art.182(5) of the Indian Limitation Act for execution of the decree in a proper Court and that the application for execution was not in accordance with law. The Court also found that the appellant was not entitled to relief under S.14(2) of the Limitation Act because the earlier darkhasts were not prosecuted in good faith and were not tenable by reason of defect of jurisdiction in the Court to which they were presented.
Issues: 1. Whether the darkhast was maintainable? 2. Whether the appellant was entitled to relief under S.14(2) of the Limitation Act?
Ratio Decidendi: 1. The Court held that the darkhast was not maintainable because it was barred by limitation. The Court found that the appellant had not taken any steps under Art.182(5) of the Indian Limitation Act for execution of the decree in a proper Court and that the application for execution was not in accordance with law. The Court also found that the appellant was not entitled to relief under S.14(2) of the Limitation Act because the earlier darkhasts were not prosecuted in good faith and were not tenable by reason of defect of jurisdiction in the Court to which they were presented. 2. The Court held that the appellant was not entitled to relief under S.14(2) of the Limitation Act because the earlier darkhasts were not prosecuted in good faith and were not tenable by reason of defect of jurisdiction in the Court to which they were presented.
Final Decision: The Court dismissed the appeal.
CHAGLA, C.J.:- This is a Letters Patent appeal which raises the question of the maintainability of a certain darkhast filed by the decree-holder. In our opinion, if the decree-holder finds himself in a position where he cannot execute the decree which he has obtained against the judgment-debtor, he has largely to thank himself. This case is a glaring instance of a litigant obtaining a decree and then doing nothing more than keep it alive by filing darkhast after darkhast.
2. The facts briefly are that the appellant, who is the decree-holder, filed a suit in the Ahmednagar Court, being suit No.5 of 1934, and obtained a money decree against the judgment-debtor, the respondent, on 12-2-1935. The decree was ex parte, and the respondent applied to set aside the ex parte decree, and the Court set aside the ex parte decree on 5-11-1936. The respondent was again absent and an ex parte decree was again passed on 26-11-1936.
On 25-2-1935, the appellant applied to the Ahmednagar Court for the transfer of the decree which had been passed on 12-2-1935, to the Poona Court where the respondent had some property, and the Court made an order transferring the decree and issued the necessary certificate under O.21, R.6. Having obtained the certificate, the appellant filed a darkhast in the Poona Court for execution of the decree of 12-2 1935. This was darkhast No.547 of 1935. This darkhast was disposed of on 15-1-1936. The appellant filed another darkhast on 11-1-1939, being darkhast No.52 of 1939. This darkhast was also for the execution of the decree of 12-2-1935.
The appellant presented a third darkhast on 31-10-1941, being darkhast No.20 of 1941. Again this was for the execution of the decree of 12-2-1935. In answer to this darkhast the respondent appeared and filed a written statement. This darkhast was disposed of on 29-9-1942, for non-prosecution.
A fourth darkhast was filed again for the execution of the earlier decree on 10-6-1943, being darkhast No.887 of 1943, and this was disposed of on 1-2-1946, the respondent having paid Rs.50 in part satisfaction of the decree. The final darkhast was filed on 12-9-1946, being darkhast No.63 of 1946, which is the darkhast under appeal, and as before the darkhast was for the execution of the earlier decree.
On 21-3-1947, the appellant applied for an amendment of the darkhast and the amendment sought was to insert in the application for execution the following sentence that the said decree, viz. the decree of 12-2-1935, had been revived on 26-11-1936. This amendment was allowed. Then the appellant applied to the Ahmednagar Court for the transfer of the decree of 26-11-1936, and the decree was transferred on 6-6-1947.
On 16-6-1947, the appellant applied for another amendment of his darkhast and the amendment he sought was the insertion in column 6 of the darkhast the following:
"This Court has received from the Ahmednagar Court on 6-6-1947, the certificate of the decree revived on 26-11-1936."
3. This amendment was also granted and the executing Court ordered the execution to proceed. An appeal was preferred from that order which came up before Mr. Justice Bavdekar, and Mr. Justice Bavdekar allowed the appeal and held that the darkhast was not maintainable.
The decree-holder has now come to us in this Letters Patent appeal.
4. Now, it is clear that there was no application for execution of the decree of 26-11-1936, till the darkhast of 12-9-1946, was amended on 16-6-1947. It was only after that decree was transferred to the Poona Court that the decree-holder made the necessary application to treat the darkhast as a darkhast to execute the subsequent decree. Prima facie, therefore, inasmuch as the first application for execution of the decree of 26-11-1936, was made on 16-6-1947, the application is barred by limitation, unless the decree-holder is in a position to satisfy us that he has taken any step under Art.182(5) of the Indian Limitation Act for execution of the decree in a proper Court and the app
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