KANAYALAL HINLAL AGARWAL Vs. TALABSHA MAGHBULSHA MUSALMAN
LAWS(BOM)-1962-12-5
HIGH COURT OF BOMBAY
Decided on December 10,1962

KANAYALAL HINLAL AGARWAL Appellant
VERSUS
TALABSHA MAGHBULSHA MUSALMAN Respondents


Referred Judgements :-

BHASKAR V. CHANDRABHAN [REFERRED TO]


JUDGEMENT

- (1.)A somewhat interesting question has been raised in this appeal which arises out of an application for execution of a money decree presented more than 12 years after the date of the decree. On 24th of October, 1932, a decree for Rs. 444-8-0 was passed against the respondents in favour of the appellants. The respondents were granted certain instalments for the purpose of paying up the decretal amount. The last of such instalments was to be due in 1942. It appears that due to the defaults of the respondents in payment of the instalments, the appellants had to file several darkhasts, the last of which was filed in 1941. By that darkhast the appellants prayed that an agricultural land bearing Survey No. 38, belonging to the respondents be attached and sold for the purpose of satisfying the balance of the decretal amount. The executing Court granted the prayer and sent the papers to the Collector for sale of the land. Some time after this was done, the B. A. D. R. Act came into force and by virtue of Section 19 of that Act, the papers which xvere with the Collector were transferred to the B. A. D. R. Court. In the B. A. D. R. Court, the respondents were not held 'debtors' within the meaning of that Act and, therefore, on 18th September, 1953, the papers were sent back to the Collector. After the receipt of the papers, the Collector, it appears, made several attempts to sell the property by public auction and the final attempt in that behalf was made on 12th January, 1957. As no person had come forward to offer a bid for the property at any of these sales, the Collector returned the papers to the Civil Court with the necessary report. The executing Court considered the Collector's report, and disposed of the darkhast on 9th February, 1957. The appellants thereafter filed the present darkhast on 19th September, 1958 and claimed recovery of the decretal amount by attachment and sale not only of Survey No. 38 which was the subject-matter of the prior darkhast but also of a house bearing City. Survey No. 3661-B, and some pronote security and also by arrest and detention in civil prison of respondents 2 and 4. To this darkhast an objection was raised on behalf of the respondents in the Executing Court that it was barred by time since it was filed more than 12 years after the date of the decree. The executing Court held that by provisions of Section 48 of the Civil Procedure Code, the execution of the decree in question was barred since more than 12 years had elapsed from the date of the decree. While so holding, it appears, that Court did not properly consider the effect of the Civil Procedure Code (Amendment) Act, 1956, which, while deleting Sections 68 to 72 and the IIIrd Schedule from the Civil Procedure Code, provided that nothing in that Act would affect pending proceedings. The executing Court accordingly dismissed the darkhast as barred by time. Against that decision, the, appellants took an appeal to the District Court. The learned District Judge modified the order of the executing Court holding that the darkhast was not barred by time so far as the execution o? the decree against Survey No. 38 was concerned but that it was so barred in so far as it was concerned with the execution of the decree against the person and other properties of the respondents. In the result, the appeal was partially allowed and the darkhast was ordered to proceed so far as the recovery of the decretal amount by attachment and sale of the land in Survey No. 38, was concerned. It is against this order that the appellants have filed the present second appeal in this Court.
(2.)IN support of this appeal, it was urged by Mr. Vaidya, the learned Advocate for the appellants, that the Courts below had erred in refusing to allow to the appellants while deciding the question of limitation in respect of the present darkhast, the benefit of the provisions of Sub-para 3 of paragraph II of the Third Schedule of the Civil Procedure Code. Mr. Vaidya contended that during the pendency of the earlier darkhast in reference to Survey No. 38 before the Collector, his clients could not take any steps for further execution of their decree against the person of the respondents by or attachment and sale of any of their properties since by sub-para 2 of paragraph II of the Third Schedule, the Civil Court was barred during the pendency of the earlier execution proceedings from issuing any process of execution either against the respondents or against any of their properties in respect of any decree and that, therefore, the appellants were entitled to the benefit of the provisions of sub-para 3 of paragraph II so as to bring their present darkhast within the period of limitation. On a careful consideration of the provisions enacted in the several paragraphs of the Third Schedule, however, I am of opinion that there is no substance in this contention.
(3.)PARAGRAPH I of the Third Schedule prescribes the powers of the Collector in cases where a decree is transferred to him for execution under Section 68 of the Civil Procedure Code, and by virtue of these powers the Collector may, under clause (c) sell the property of the judgment-debtor ordered to be sold by the Civil Court or so much thereof as may be necessary to satisfy the decree. The decree contemplated by this paragraph may he one purely for payment of money or one ordering the sale of an immovable property in pursuance of a contract specifically affecting such property.


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