TALAKCHAND JAYACHAND DOSHI Vs. BHAICHAND GAUTAMCHAND DOSHI

JUDGEMENT

(1.) This Letters Patent Appeal seeks to challenge the order of Vaidya J. dated 12th of Aug., 1975 by which he dismissed First Appeal No. 153 of 1971 preferred by the appellants in this appeal. The appeal before Vaidya J. arose out of an order passed in execution started by the respondents in this appeal. The appellants are the judgment-debtors and having failed both before the executing court and before Vaidya J., they have now preferred this Letters Patent Appeal.

(2.) In Special Civil Suit No. 60 of 1953 filed in the Court of the Civil Judge, Senior Division at Solapur, one Bhaichand Gautamchand Doshi obtained a decree based upon an arbitration award in the sum of Rs. 13,100. That decree provided that the defendants in that suit were to pay to the plaintiffs a sum of Rs. 13,100 with interest thereon from the date of the filing of the award which was 26th of Nov., 1953. The decree provided for the payment of the decretal amount in monthly instalments of Rs. 250, the first of such instalment falling due within one mouth of the date of the filing of the award. The decree further provided that in default of payment of any six instalments the plaintiff was at liberty to recover the whole amount then due. A charge for the decretal amount was kept on the residential house of the defendants. That house was situated at village Akluj in Malsiras Taluka of Solapur District. On 16th Mar. 1954 an application for certified copy of the decree was made and the same was obtained on 22nd Apr. 1954. It was then noticed that there was an error in the description of the property on which the charge had been Kept. Therefore, an application for amending the decree was made on 22nd of June, 1954. The decree was ultimately amended on 11th of Nov., 1954. In the meantime Bhaichand died and his legal representatives had executed a Power of Attorney in favour of one Shantilal on 13th of Apr., 1954. They presented the certified copy of the decree for registration on 10th of Feb., 1955. It may be noted at this stage that this is within three months of 11th of November, 1954 on which date the amended decree had come into existence. Subsequently the legal representatives of Bhaichand assigned the decree in favour of one Kishorkumar Khushalchand Rathod.

(3.) On 10th of Dec., 1968 a Darkhast, being Special Darkhast No. 53 of 1968, was filed by the legal representatives of Bhaichand along with the assignee of the decree for recovering the decretal amount which was in balance at that time. At this stage we should also mention that between 1954 and 1961 a sum of Rs. 7,900 had been paid by the judgment-debtor from time to time and in Mar. 1961 the judgment-debtor had also acknowledged the amount which was due on the decree. By an order dated 7th of Dec., 1970, the learned trial Judge ordered the issue of process under Order XXI, Rule 66 of the Civil P. C. which was challenged in First Appeal No. 153 of 1971. That appeal, as already mentioned above, was dismissed by Vaidya J. by his judgment and order dated 12th Aug., 1975. It is this order that is the subject-matter of challenge in this Letters Patent Appeal.