KHUSHALCHAND MOHANLAL MARWADI Vs. DADA BHIKA PAWAR
LAWS(BOM)-1954-1-20
HIGH COURT OF BOMBAY
Decided on January 22,1954

Khushalchand Mohanlal Marwadi Appellant
VERSUS
Dada Bhika Pawar Respondents


Referred Judgements :-

YAKUB ALI V. DURGA PRASAD [REFERRED TO]
CHOWDHURY AJODHYA NATH PAHARY V. CHOWDHURY SRINATH CHANDRA,PAHARY [REFERRED TO]
ABDUL AZIM SAHIB V. CHAKKAN CHETTIAR [REFERRED TO]
SARADA SUNDARI V. JABBAR ALI [REFERRED TO]



Cited Judgements :-

SHANKAR ANANDA PATIL VS. TUKARAM DATTU PATIL [LAWS(BOM)-1969-9-5] [REFERRED TO]


JUDGEMENT

M.C.CHAGLA, J. - (1.)THE petitioners filed an application under the Bombay Agricultural Debtors Relief Act on July 14, 194.7, in respect of a judgment debt. Both the Courts below have held that the judgment debt was barred by limitation and therefore the application was not maintainable.
(2.)NOW , the decree out of which the judgment debt arises was passed on June 30, 1982. It was a decree against an agriculturist within the meaning of the Dekkhan Agriculturists' Relief Act, and the decree -holder filed a darkhast, being darkhast No. 45 of 1941, in, respect of four lands of the judgment -debtor. This darkhast was transferred by the executing Court to the Collector for execution. Under Section 22 of the Dekkhan Agriculturists' Relief Act the power of the executing Court to execute a decree against an agriculturist is a limited power and the only power is to direct the Collector to take possession, for any period not exceeding seven years, of any such property of the judgment -debtor to the possession of which he is entitled, and which in the opinion of the Collector is not required for his support and the support of the members of his family dependent on him, and the Collector shall thereupon take possession of such property and deal with the same for the benefit of the decree -holder in the manner provided by Section 29. Now, on October 2, 1948, the darkhast was returned by the Collector to the executing Court with an endorsement by the Collector that two out of the four lands in respect of which execution was sought were not in possession of the judgment -debtors and that two other survey numbers, were necessary for their maintenance and could not be leased out for the realisation of the decretal dues. Therefore, the view of the Collector was that there was no land which was not required for the support of the debtor and the members of his family which he could take possession of and deal with as required by Section 29. On December 15, 1943, the darkhast came up before the executing Court for orders and this is the order that the learned Judge passed : 'Papers arc returned by the Collector holding that there is no surplus property which can be let out. Therefore darkhast is disposed of. Costs allowed.' Now, the rojnama shows that the decree -holder's pleader was present. Mr. Tarkunde says that the rojnama is not signed and it is difficult to believe that the pleader of the plaintiff would be present without any notice. I am not prepared to assume that the rojnama was not properly kept, but it is unnecessary to decide whether the plaintiff's pleader was present or not because the, decision I have come to will be the same whether the plaintiff's pleader was present or not.
Now, prima facie, when the application for adjustment of debts was made on July 1.4, 1947, the judgment debt was barred, because the application was made 12 years after the decree became executable, and also on the other ground that the darkhast was filed more than three years after the last darkhast which was disposed of in 1943. Mr. Tarkunde is right when he says that the learned Judge's reasoning that the debt adjustment Court is not an executing Court and a proper application for execution should have been made to the executing Court is not, with respect, correct, because what the debt adjustment Court has got to consider is whether on the material date the debt was subsisting or was time -barred. It is not necessary for the decree -holder to make an application for execution if he could satisfy the Court that on the material date he could have executed the judgment debt. Therefore, the test is not whether an application for execution is pending or not, but whether on July 14, 1947, there was a judgment debt which the decree -holder could have realised. If he could have made an effective application for execution in respect of that debt, then that was a debt which could have been adjusted by the Debt Adjustment Court. But the real question is whether on the material date the debt was barred by limitation or not. What Mr. Tarkunde contends on the strength of the authorities, to which I shall presently refer, is that the order passed by the learned Judge on December 15, 1943, was not a judicial order. It was an administrative order, and what was really done was that for the convenience of the Court the darkhast was removed from the file. Therefore, it was open to the decree -holder by making a subsequent darkhast at any time to revive that darkhast. The authorities show that two conditions are necessary before it could be said of a darkhast which is disposed of that the order made thereon is not a judicial but an administrative order. In the first place, there should be no default on the part of the decree -holder which has resulted in. the darkhast being struck off, and in the second place something must remain to be done under the darkhast which could have been done by the executing Court and which the executing Court has failed to do. These two principles will become apparent when we look at the cases on which Mr. Tarkunde has relied.

(3.)THE first is the decision in Yakub Ali v. Durga Prasad I.L.R (1915) All. 518. In that case there was an application for execution for sale of certain property and the decree was sent to the Collector for execution. The Collector found that part of the property sought to be sold belonged to persons other than the judgment -debtor and therefor he sent the decree back to the Subordinate Judge for orders. The Subordinate Judge called upon the pleader for the decree -holders to make a statement and no statement having been made the application was struck off and the file was sent to the record. On these facts the Allahabad High Court held that a subsequent application made for execution more than three years after the first application for execution was within time as it was an application to revive the execution proceedings which had been suspended and not dismissed. Now, as is clear from the judgment of the Court, the Court took the view that when the Collector reported that part of the property could not be sold because it belonged to persons other than the judgment -debtor, the Court should have directed the Collector to sell that part of the property which admittedly belonged to the judgment -debtor. The Court further pointed out that the matter was not called on for hearing on. the last day fixed for receiving the statement from the pleader. It also appears that neither the decree -holder nor the pleader were aware of the penalty which would be imposed if they failed to make the statement. It was on these special facts that the Allahabad High Court came to the conclusion that it did. But it would be noticed, and that is the most important principle appearing from the decision, that the darkhast was not disposed of in the sense that something remained to be done which could have been done in the darkhast itself.


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