BANDO KRISHNA KUNBARGI Vs. NARASIMHA KONHER DESHPANDE

JUDGEMENT

(1.) This is an appeal from the decision of the Subordinate Judge, First Class, Belgaum, rejecting darkhast No. 443 of 1908, presented by the appellant for execution of the decree in suit No. 434 of 1897. The ground of rejection is that the darkhast is barred by time, inasmuch as the previous five darkhasts were not in accordance with law, having each claimed relief or reliefs which it was not competent for the Court to grant.

(2.) The decree of which execution was sought by the darkhast in question had been passed originally on the 17th of November 1897; but it was amended on the 20th of January 1899. The amount payable under it was split up into four items. The first was a sum of Rs. 575 for costs made payable at once. The second consisted of two sums of Rs. 6,000 each; the first sum was directed to be paid by the end of January 1908; in case of non-payment, interest at 4 1/2 per cent, was made to run on the sum from the 1st of November 1897 up to the date of payment. As to the second sum of Rs. 6,000, the decree directed that interest should run at 4 per cent, from its date to the date of payment. The third item of the decree was a sum of Rs. 44,000 with Rs. 1,980 as interest thereon. The decree made Rs. 44,000 payable in forty-four years by instalments each of Rs. 1,000 a year. For satisfaction of Rs. 1,980 the judgment-debtor was directed to put the decree-holder in possession of certain lands; and it was provided that should the profits thereof fall short of the amount payable, the judgment-debtor should make up the deficiency by payment in cash. It was also provided in the decree that if the judgment-debtor should put the decree-holder in possession of only part of the lands, instead of the whole, the former should place the latter in possession of other lands so as to enable the decree-holder to obtain the full amount of interest. The decree then wound up with a final clause, making the whole of the mortgaged property therein mentioned security for the whole of the decretal amounts.

(3.) The first darkhast for execution was presented on the 18th of June 1898; the second on the 4th of January 1901; the third on the 13th of August 1901; the fourth on the 4th of August 1904; the fifth on the 26th of July 1907. These were all prima facie sufficient in law to keep the decree alive, because every application after the first was within three years of the last preceding application. And the present darkhast, having been presented on the 2nd of December 1909, is also prima facie in time, being within three years of its immediate predecessor, the darkhast of the 26th of July 1907.