GOPAL PARSHARAM NAMJOSHI Vs. DAMODAR JANARDAN BHAGWAT

JUDGEMENT

(1.) THE appellants are the sons of one Parsharam Mahadev Namjoshi, opponent No.3 in Darkhast Not 452 of 1937 filed in the Court of the Subordinate Judge at Devrukh by one Bhagwat, respondent No.1, in execution of a decree passed in the latter's favour on June 7, 1927, against opponents Nos. 1 and 2, judgment-debtors, named Vishnu Laxman Joshi and Ramakrishna Laxman Joshi. Bhagwat had been one of the Joshis' creditors and his claim was referred to arbitration, an award made and a decree passed in regular civil suit No.80 of 1927. THE decree directed that defendants Nos. 1 and 2 should pay to the plaintiff the principal amount of Rs. 2,178 within five years with interest at six per cent. per annum, that the past interest of Rs. 272 should be paid within a year from the date of the decree, and that if the defendants committed default in payment of this amount of interest in time, the plaintiff would be entitled to recover the whole amount payable by the sale of certain immoveable property on which a charge in respect of Rs. 2,178 was created, and it further provided that if the sale proceeds were insufficient, the deficit should be recoverable out of the remaining property of the defendants and from the defendants personally. THEre was a similar provision regarding interest accruing annually from the date of the decree. Default having been committed, Bhagwat, the decree-holder, brought the present darkhast for sale of six of the properties covered by the charge, and further prayed that if the sale proceeds fell short of the money due to him, another property belonging to the judgment-debtors, viz. survey No.40, should also be brought to sale. Prior to the present darkhast, Bhagwat had filed four darkhasts, viz. darkhast No.247 of 1928, darkhast No.195 of 1931, darkhast No.436 of 1932 and darkhast No.465 of 1934. In the last of those darkhasts he had prayed for rateable distribution of the sale proceeds which would be realised in another and prior darkhast No.324 of 1934 filed by one Sane, a mortgagee of the Joshis, in execution of a decree for Rs. 426-8-2 obtained in civil suit No.349 of 1929. In that darkhast the proceedings had been transferred to the Collector under Section 68 of the Code of Civil Procedure and a sale ordered. THE sale was to take place on June 10, 1935. On that day the Joshis applied for six days' time for arranging for a private sale, and on June 11 the Mamlatdar granted permission, purporting to act, it seems, under Order XXI, Rule 83, on condition that the money realised should be deposited in Court by June 15, 1935. THE permission referred to three encumbrances on lots Nos. 9 to 14, the property in respect of which the present darkhast No.452 of 1937 has been filed, viz. two encumbrances in favour of Sane, including the one which was being enforced in the execution proceedings, and one in favour of one Rajwade. THE Joshis arranged for a sale of lots Nos. 9 to 14 with the appellant, Namjoshi. Rajwade agreed to forego his claim on lots Nos. 9 to 14 and to confine it to another property, via. lot No.15. In respect of the other encumbrance in favour of Sane the latter had obtained a decree in civil suit No.348 of 1929 and an amount of Rs. 940 was due thereon. A sale-deed, exhibit 47, was passed on June 15, 1935, in favour of Namjoshi for Rs. 1,366-8-2 (the total of the two amounts due to Sane under the two decrees against the Joshis). It was recited therein that Rs. 426-8-2 due under the decree in regular civil suit No.349 of 1929 was to be paid into Court for the complete satisfaction of the darkhast and that Rs. 940 was to be kept with the vendee, Namjoshi, for being paid in the execution proceedings of suit No.348 of 1929. Namjoshi accordingly paid Rs. 426-8-2 into Court on June 15, 1935, and the sale-deed was taken to, the Sub-Registrar for registration on June 17, 1936. On the same day, but before the deed had been brought to the Sub-Registrar, Bhagwat made an application to the latter requesting him that in case a sale-deed in favour of Namjoshi was brought for registration, the vendee should be notified of his decree of 1927 for Rs. 2,178 and costs and interest. It is admitted that the Sub-Registrar duly notified Namjoshi of this application before the sale-deed, exhibit 47, was registered. Namjoshi did not at once deposit Rs. 940 in Court as ordered by the Mamlatdar; Sane had to file darkhast No.320 of 1935 seeking to bring the property to sale, and Namjoshi thereupon deposited Rs. 975-13-0 in Court on April 7, 1936. On this amount being paid to Sane, the property in dispute became free from Sane's encumbrance.

(2.) IN this darkhast, No.452 of 1937, the following objections were taken by the appellant, Namjoshi, the judgment-debtors remaining absent : (1) The previous darkhast No.465 of 1934 was not an application made in accordance with law, and therefore the present darkhast was barred under Article 182, Clause (5), of the first schedule to the INdian Limitation Act; (2) the appellant was a bona fide purchaser for value without notice of the charge created in favour of Bhagwat; Bhagwat, therefore, could not enforce his decree against him; and (3) even if Bhagwat could do so, the appellant was entitled to claim subrogation as he had satisfied the two encumbrances of Sane which were prior to Bhagwat's charge. The trial Court held that none of the objections were tenable, and ordered the sale of the property mentioned in the darkhast application. The appeal to the District Court was dismissed.

(3.) THE prayer clause in darkhast No.465 of 1934 was as follows : Regular darkhast No.324 of 1934 is pending against the defendants in this Court. Out of the sale proceeds that will be realised in that darkhast rateable distribution should be allowed for Rs. 3,433-3-4 the amount due under this decree; costs of these execution proceedings and future interest on Rs. 2,178 at 6 per cent. per annum till the date of repayment should be allowed.