SAKHARCHAND BHUKANDAS GUJARATHI Vs. PUNJU CHINTAMAN WANI

JUDGEMENT

(1.) THIS appeal is directed against the order passed by the learned Assistant Judge, Dhulia, who allowed the appeal of the judgment-debtors and set aside the order of the trial Court and dismissed the decree-holders' darkhast No. 942 of 1942. The appellant obtained a money decree in Civil Suit No. 487 of 1922 on 19-9-24. he filed several darkhasts from time to time. In 1929 some other decree-holder filed darkhast No. 929 of 1929 against the present judgment-debtor for executing his decree. This was with a prayer to sell the judgment-debtor's Survey Nos. 25/1, 32/1 and 33 situate at village Jirali, district Jalgaon. In this darkhast Survey Nos. 25/1, 32/1 and 33 situate attached and brought to sale. The present appellate-decree-holder filed darkhast No. 745 of 1932 claiming to attach S. No. 55 of the judgment-debtor and for also reteable distribution of S. Nos. 25/1, 32/1 and 33 in darkhast No. 929 of 1929. Under Section 73 of the Civil Procedure No. 745 of 1932 was disposed of without any final order after realising part payment of the decree from the sale proceeds of S. No. 55 for no fault of the decree-holder.

(2.) THE appellant then filed darkhast No. 942 of 1942 on 2-9-42 with which we are concerned in this appeal. He prayed there that Survey Nos. 25/1, 32/1 and 33 of the judgment-debtor should be attached and sold. There the point arose whether it was in continuation of his old darkhast No. 745 of 1932, which was disposed of for no fault of the decree-holder because the judgment-debtor had raised a contention that the darkhast was time-barred. The trial Court before whom darkhast No. 942 of 1942 proceeded held that it was not time-barred; that, on the other hand, it was in continuation of old darkhast No. 745 of 1932 and ordered that the other decree-holder should be given notices as to realised in the old darkhast should not be awarded to the present appellant. The judgment-debtor went in appeal. The learned appellate Judge allowed the appeal and remanded the record an proceedings back with a direction to the trial Court to find with a direction to the trial Court to find out whether S. Nos. 25/1, 32/1 and 33 were also the subject-matter of darkhast No. 745 of 1932. If the question of reteable distribution of these survey numbers was also the subject-matter of the old darkhast then the instant darkhast with which we are concerned should be construed to be in continuation of the old darkhast. If that question was not the subject-matter in the old darkhast then the instant darkhast was time barred.

(3.) THE trial Court on remand found that the three survey numbers were also the subject-matter in Darkhast No. 745 of 1932. Accordingly, therefore, the execution proceeded. There was an appeal against that order. The learned Assistant Judge, however, found that the order of the trial Court was not proper because according to him old darkhast No. 745 of 1932 of the decree-holder was disposed of on 24-6-1940 by attachment and sale of Survey No. 55 belonging to the judgment-debtor. He held that in view of this disposal the attachment of the three survey numbers in darkhast No. 929 of 1929 of the other decree-holder cannot come to the help of the appellant. It is in that view that he allowed the appeal and set aside the order of the trial Court.