BALKRISHNA WAMNAJI GAVANKAR Vs. SHIVA CHIMA MHATRA

JUDGEMENT

(1.) THE present darkhast of 1907 has been held by both the Courts below to be barred as res judicata by the order of the Subordinate Judge rejecting the previous darkhast No. 460 of 1904 on the ground that it was time barred. Though that might have been if this latter darkhast and the order thereon by the Subordinate Judge had stood alone, we have here the fact that, at the time of that darkhast and the order, there was an appeal pending in the District Court against the order in the decree-holder s favour directing execution to proceed in darkhast No. 5 of 1903. That was an appeal preferred by the judgment-debtor and the appeal Court upheld the order in the decree-holder s favour on the 2nd of August 1905. THE decree-holder had under the appellate decree a right subsisting on that date to proceed in execution under the darkhast of 1903. As a matter of fact he did apply to the Court on the 10th of October 1906. That was an application to take a step- in-aid of execution according to law and it was made within three years immediately preceding the date of the present darkhast of 1907. THE right of the decree-holder to proceed in execution on the strength of the appellate Court s order in his favour could not be affected by the order of the Subordinate Judge s Court passed in the darkhast of 1904, because the latter was the order of a lower Court and it was passed in a darkhast which could not have legal validity so long as the darkhast of 1903 was kept alive by proper proceedings. THErefore, the order appealed against is set aside and the Subordinate Judge is directed to allow execution in the darkhast of 1907. THE respondents must pay to the appellant the costs throughout of this darkhast.