LAXMINARAYAN DEVASTAN Vs. KHANDERAO YESHWANTRAO

JUDGEMENT

(1.) ONE Khanderao Yeshwantrao Chandrachud (hereinafter referred to as Khanderao) filed Special Suit No. 39 of 1945 in the Court of the Civil Judge (Senior Division) at Ahmed-nagar against Shri Laxminarayan Devasthan, Poona, and its managers for a declaration that the properties mentioned in para. 1 of the plaint were Saranjam properties belonging to the plaintiff Khanderao and the same were not liable to be sold in execution of the decree in Suit No. 21 of 1933. Suit No. 39 of 1945 was dismissed by the Civil Judge with costs on February 18, 1947. Shri Laxminarayan Devasthan, Poona, thereafter filed Darkhast No. 43 of 1947 for enforcement of the decree for costs against Khanderao, and certain properties belonging to the latter were attached and sold. The sale was confirmed and the sale proceeds were received by the Court. In the meanwhile one Gokuldas Umedram who had filed Special Suit No. 1502 of 1933 in the Court of the Subordinate Judge at Poona against Sada-shivrao and Yeshwantrao, uncle and father respectively of Khanderao, and had obtained a money decree against them, applied to execute that decree by Darkhast No. 70 of 1945 in the Court of the Civil Judge (Senior Division), Ahmednagar, against Khanderao, as the heir and legal representative of the judgment-debtors. By Ex. 29 the heirs of Gokuldas applied for rateable distribution of the amount received in Darkhast No. 43 of 1947.

(2.) THE learned Civil Judge (Senior Division) by his order dated 16-2-1950, ordered that the proceedings in the darkhast be stayed till the decision of the Debt Adjustment Application filed in the Debt Adjustment Court at Newasa by Khanderao. He observed that if the Debt Adjustment Application was disposed of by the Debt Adjustment Court" and the darkhast was not re-transferred, the amount held- by the executing Court would be paid to the decree-holder in Darkhast No. 43 of 1947, but if the darkhast was re-transferred to the executing Court, rateable distribution would be ordered. The learned Judge accordingly ordered that "the amount held by this Court is ordered to be retained by the Court until further orders".

(3.) THEREAFTER on 17-2-1950, Ha:i:nantram (one-of the managers of Shri Laxminarayan Devasthan) applied to the executing Court stating that the-amount realised by the sale of the judgment-debtor's property was lying uninvested in Court and that it may be paid to him on an undertaking that the same would be returned when ordered. The advocate for the decree-holder in Darkhast No. 70 of 1945 (filed by the legal representatives of Gokuldas) agreed that the amount may be paid as prayed, provided security was furnished by Hanmantram. The learned Civil Judge passed an order directing that the amount lying in Court be paid over to Hanmantram. Ultimately the Debt Adjustment Court held that Khanderao was not a debtor within the meaning of the Bombay Agricultural Debtors Relief Act, and returned the papers to the executing Court. An application was then submitted by the decree-holders in Darkhast No. 70 of 1945 on 4-10-1949, for calling upon the heirs of Hanmantram (Hanmantram having since died) to deposit the-amount in Court as undertaken by Hanmantram. On 21-7-1951, the Court passed an order directing. Hanmantram's heirs and the surety to deposit the amount withdrawn by Hanmantram. The amount was accordingly deposited as ordered by the Court. Thereafter on 3-10-1951, the learned Judge ordered that the amount lying in Court be rateably distributed between the decree-holders in the two darkhasts. It appears that the order dated 3-10-1951, was passed without hearing the parties. The darkhastdars in Darkhast No. 43 of 1947 applied for vacating the order and for hearing arguments on the claim made by the darkhastdars in Darkhast No. 70 of 1945. The application was, however, rejected. Against that order the present appeal has been preferred by the managers of Shri Laxminarayan Devasthan.