CHANNAPPA GIRIMALLAPPA JOLAD Vs. SHANKARDAS VISHNUDAS DARBAR

JUDGEMENT

(1.) THE main question in this appeal, which arises out of execution proceedings, is whether the darkhast is barred under Section 48 of the Civil Procedure Code. THE appellant is the original judgment-debtor, and the respondents are the decree-holders. THE facts leading up to the darkhast are somewhat complicated, and the material facts may be stated as follows.

(2.) THE decree-holders, whose father was the mortgagee of a mortgage dated September 30, 1905, obtained a decree in terms of a compromise on July 30, 1918, under which it was declared that the defendants were to pay Rs. 13,000 to the plaintiff by annual installments of Rs. 1,200, that if the defendants failed to make payment in time of any installment, such installment was to bear interest, and that if the defendants failed to make payments in time of any two installments, the plaintiff should be entitled to recover the whole amount due. Some installments were paid thereafter. THE mortgagor was one Muchkhandeppa who died in 1911, and his widow Baslingawa adopted Girimallappa who died in 1916. Girimallappa's widow Irawa adopted the appellant in 1920. In 1923 the decree-holders filed darkhast; No.320 of 1923. It was thrown out as no final decree had been passed. Accordingly, on November 17, 1923, the decree-holders applied for the decree being made final. On October 11, 1924, a decree was passed for Rs. 6,951-6-4 and interest on Rs. 1,200 at nine per cent, per annum from the date of the application to the date of payment. This decree did not allow any installments. On March 27, 1926, Irawa brought a suit against the present appellant for setting aside his adoption. THE suit was dismissed. Before that, on June 29, 1925, the decree-holders had filed darkhast No.188 of 1925 seeking to recover in all Rs. 7,163-11-11, and on September 17, 192G, there was a private sale by Irawa of the entire property mortgaged to the decree-holders. To this sale the appellant was not a party. THE order passed in darkhast No.188 of 1925 was: As the parties have amicably settled, the sale proceedings were returned without being auctioned. Hence the decree having been fully satisfied and costs having been received the darkhast is disposed of.

(3.) ON January 17, 1938, the present darkhast No.58 of 1938 was filed. In it the decree-holders claimed interest on the whole amount of Rs. 6,951 from the date of the application for the final decree, namely November 17, 1923. The judgment-debtor opposed the darkhast and pleaded the bar of limitation on three grounds, the first being that the preliminary decree was not made final within three years as required by Order XXXIV, Rule 5, Civil Procedure Code, and was therefore not executable. No argument has been addressed to us based on this ground. The second ground, which has also not been argued before us, was that the sale in favour of the decree-holders by Irawa having been declared null and void in Second Appeal No.675 of 1931, the darkhast ought to have been filed within three years of that, and that the darkhast not having been so filed was barred. The last ground, on which the present appellant has based his case before us, is that the present darkhast has been filed after the expiry of twelve years from the date of the final decree, namely October 11, 1924. The learned trial Judge, however, came to the conclusion that there was no force in any of these contentions in view of the decree in Suit No.545 of 1933 which according to him "set aside the alienation and restored the award decree." He held that all the previous rights of the decree-holders were revived by this order and that therefore the decree-holders would be entitled to claim the unsatisfied amount irrespective of the present contentions of the defendant. The order of the trial Court in Suit No.545 of 1933 was passed on October 25, 1935, and thereafter the present decree-holders filed darkhast No.250 of 1936, and that was disposed of on April 17, 1937. The present darkhast was filed on January 17, 1938. The learned trial Judge held that the last darkhast was in time.