BAPU PARASHRAM CHANDAR Vs. KANHAYALAL MOHANLAL
LAWS(BOM)-1954-2-7
HIGH COURT OF BOMBAY
Decided on February 02,1954

BAPU PARASHRAM CHANDAR Appellant
VERSUS
KANHAYALAL MOHANLAL Respondents


Referred Judgements :-

HASANSAHEB NABISAHEB VS. VIRUPAXAPPA MAHANTAPPA [REFERRED TO]


JUDGEMENT

- (1.)The plaintiff Kanhayalal Mohanlal filed Suit No. 25 of 1938 in the Court of the First Class Subordinate Judge at Ahmed-nagar against five defendants for a decree for sale on a mortgage dated May 31, 1926, executed by defendants Nos. 1 and 2. The defendants being agriculturists, the suit was tried under the Dekkhan Agriculturists' Relief Act, and on February 20, 1940, a decree was passed declaring that an amount of Rs. 5,000 was due to the plaintiff under the mortgage and providing that 'defendants Nos. 1, 2, 4 and 5 do pay the same to the plaintiff together with costs of the suit and future interest on Rs. 3,000 at the rate of 6 per cent, per annum from the date of institution of suit till the amount is fully paid.' The defendants were directed to pay the amount decreed by annual instalments of Rs. 1,000. The first instalment was to be paid on October 1, 1940. It was provided in the decree that if any Instalment remained unpaid, for recovery thereof an application under Section I5B of the Dekkhan Agriculturists' Relief Act may be made for sale of the mortgaged property. The instalment due on October 1, 1940, not having been paid, the plaintiff applied by Darkhast No. 70 of 1941 for sale of the mortgaged property. By order dated January 9, 1942, the proceedings were sent to the Collector of Ahmednagar for recovery of the amount due. Thereafter on April 6, 1913, the plaintiff applied to add the amount of two instalments for the years 1941 and 1942 which had fallen due during the pendency of the darkhast, to the claim made in Darkhast No. 70 of 1941. The learned Judge granted the application and informed the Collector that two more instalments had fallen due and the judgment-debtors were liable for the same and that the same may be recovered in execution proceedings. Defendant No. 5 died during the pendency of the darkhast before the Collector, and the Collector returned the papers to the civil Court for bringing the heirs of the deceased defendant on record. On August 9, 1946, the plaintiff informed the Court that he did not desire to bring on record the heirs of defendant No. 5. The papers were then returned to the Collector. On July 17, 1947, the plaintiff filed a purshis stating that the defendants were debtors and that the debts due by them were less than Rs. 15,000 and therefore the darkhast be transferred to the Debt Adjustment Court at Kopergaon. The learned Civil Judge transferred the darkhast to the Debt Adjustment Court at Kopergaon and sent a vadi to the Mamlatdar, Kopergaon, to send the papers of the darkhast pending before the Collector to the Debt Adjustment Court. The Debt Adjustment Court made inquiry into the status of the defendants and came to the conclusion that they were not debtors and ultimately returned the papers to the Civil Judge's Court. On June 20, 1951, the plaintiff applied that two more instalments which had fallen due on October 1, 1943, and October 1, 1944 and interest and costs which were payable by the defendants should be added to the darkhast claim, and the Collector should be asked to recover the same in the proceedings pending before him.
(2.)The defendants resisted the application. They contended that the instalments having fallen due more than 3 years prior to the date on which the application was submitted by the plaintiff for adding the amount of those two instalments the civil Court had no Jurisdiction to allow the same to be added because a fresh darkhast for recovery of those instalments would be barred by limitation. The plaintiff contended that the time during which the proceedings were pending before the Collector could be excluded under Clause (3) of para. 11 of Schedule III of the Civil Procedure Code and that in any case the period between July 17, 1947, and February 16, 1951, could be exclued under Section 52 of the Bombay Agricultural Debtors Relief Act, 1947, and that in either case the application was in time and the plaintiff was entitled to recover the amount in addition to the amount claimed in the darkhast. The learned executing Judge accepted the contention of the plaintiff and ordered the darkhast to proceed and ordered that intimation be given to the Collector to sell the mortgaged property after including the amount of the two instalments. Against that order the present appeal has been preferred by defendants Nos. 1 and 2 and the. heirs of defendant 4.
(3.)Now, in Clause (1) of para. 11 of Schedule III of the Civil Procedure Code it is provided:-" So long as the Collector can exercise or perform in respect of the judgment-debtor's im-moveable property, or any part thereof, any of the powers or duties conferred or imposed by him by paragraphs 1 to 10, the judgment-debtor or his representative in interest shall be incompetent to mortgage, charge, lease or alienate such property or part except with the written permission of the Collector....." There is a further provision made therein that the civil Court shall during that time be incompetent to issue any process against such property or part thereof in execution of a decree for the payment of money. In this case the civil Court is not asked to issue process against property in the management of the Collector in execution of a decree for payment of money. The amount which is sought to be added to the darkhast cannot be regarded as an amount to be recovered in execution of a decree for payment of money. The decree sought to be executed is a mortgage decree and the application to the civil Court was not for issue of process against any property in the management of the Collector, but was an application to include the amount of two instalments which had fallen due, in the claim in the original darkhast, so that the same may be recovered by the Collector in execution. Clause (3) of para. 11 provides :--
"The same period shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived."
The expression 'same period' means the Period during which the Collector can exercise or per-form the powers or duties under paras. 1 to 10 of Schedule III. It is clear from Clause (3) that if, the decree-holder has by reason of the provisions of para 11, Clause (1), been temporarily deprived of any remedy to which he is otherwise entitled, in calculating the period of limitation for filing execution proceedings the period during which he has been so deprived of the remedy shall be excluded. In this case it cannot be said that the plaintiff has been temporarily deprived of any remedy under para 11 and therefore the time during which the darkhast is pending before the Collector cannot be excluded. It is evident that para. 11, Clause (3), applies only to cases in which a decree- holder holding a decree for money is prohibited from applying for execution under Clause (1). It does not apply to cases in which under a mortgage decree instalments have fallen due subsequent to the date on which the proceedings were transferred to the Collector and attempt is made to enforce liability through the Collector for those instalments by sale of the mortgaged property. In my view, the learned trial Judge was in error in holding that under Clause (3) of para. 11 the period of limitation for filing an application in execution for recovery of instalments under a mortgage decree could be extended by excluding the period during which the proceedings before the Collector were pending for recovery of instalments which had fallen due before the date of the application.


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