HIRACHAD KHEMCHAND GUJAR Vs. ABA LALA PATIL

JUDGEMENT

(1.) THIS is an appeal from the decision of the Assistant Judge of Satara, dismissing an appeal from an order made by the Second Class Subordinate Judge in the matter of a Darkhast taken out by the plaintiffs in execution of a decree which was passed on the 11 September 1900. That was a consent decree whereby it was declared that there was a balance of Rs. 1800 due to the defendants; that it should be paid off by ten yearly instalments from the end of Falgun 1831 Shake, which would correspond wi March, 1901; that in case of failure of payment of an instalment the defendant was to wait for one year; and that if during that time the plaintiff did not pay to the defendants the amount of the instalment, in respect of which there was failure of payment, together with interest, then the defendants were to recover the whole of the amount through the Court by selling the mortgaged lands. Default was made in paying the first instalment, nor was it paid within a year from the date of the default. Therefore, by the terms of the decree, the defendants were entitled to apply in March 1902 for execution of the decree by selling the mortgaged lands. On the 1 December 1903, they applied to the Court to have the decree made absolute, and, on the 7 January 1904, an order was made by the Subordinate Judge making the decree absolute.

(2.) NOW, when a decree is passed under the provisions of the Dekkhan Agriculturists Relief Act, there is no necessity to apply to the Court to have the decree made absolute. The defendants should have applied for execution at once, and the application to have the decree made absolute would at the best be considered as a step-in-aid of execution, so that the order of the Subordinate Judge cannot be treated as a decree which would form a first starting point for the period of twelve years allowed by Section 48 of the Civil Procedure Code. The defendants issued a Darkhast on the 7 August 1906, another in 1909, and another in 1912. The present Darkhast was filed on the 7 June 1915. That was clearly more than twelve years after March 1902 when the decree could have been executed by sale of the mortgaged property in consequence of the plaintiffs default. It is admitted that unless the defendants can succeed in getting the Court to hold that the order of the 7 January, 1904 was a decree which has now to be executed, the present Darkhast is out of time. For the reasons already given, I think that the order of the 7 January 1904 was merely an order in execution, and not a fresh decree. The decision, therefore, of the learned Assistant Judge was right and the appeal must be dismissed with costs.