SADASHIV VENKAJI JOSHI Vs. NARSINGRAO KONHERRAO

JUDGEMENT

(1.) The question in this appeal is one of limitation. The lower Court has dismissed the Darkhast as time-barred on the ground that the Application No. 500 of 1906 which was presented on the 10th of Nov. 1906 was not an application in accordance with law to the proper Court for execution. This application was held to be not in accordance with law, because under Sec. 47 of the Dekkhan Agriculturists' Relief Act it was not accompanied with a Conciliator's certificate as required by that section. In support of his conclusion the learned Judge has relied upon the case of Manohar Vs. Gebiapa I.L.R. (1881) 6 Bom. 31 . Apart from the decision, it seems to me that an application for execution which is otherwise in accordance with law, is an application in accordance with law within the meaning of Art. 182 of the Indian Limitation Act even though it is not accompanied with the Conciliator's certificate as required by the Dekkhan Agriculturists' Relief Act. No doubt this view is in conflict with the decision which I have just mentioned. But several recent decisions of this Court support the view which I take of the meaning of the word 'entertained' in Sec. 47 of the Dekkhan Agriculturists' Relief Act. The case of Bando Vs. Jambu (1910) 12 BOMLR 801 and the unreported judgments in Civil Extraordinary Applications Nos. 155 of 1909 and 161 of 1909 and in Civil Reference No. 7 of 1910 all consistently point to the conclusion that the view taken in Manohar's case cannot now be accepted. No doubt in case of a conflict of decisions ordinarily a reference to a Full Bench would be necessary; but having regard to the current of recent decisions of this Court, it seems to me to be now settled that a suit or an application, though not accompanied with a Conciliator's certificate, can be legally presented to a competent Court, Without the certificate there may be difficulty in proceeding with the suit or the application in consequence of the provisions of Sec. 47 of the Dekkhan Agriculturists' Relief Act. I am, therefore, of opinion that the appellant's contention that the application of the 10th of Nov. 1906 was in accordance with law for the purposes of the Indian Limitation Act must be allowed.

(2.) There is another ground also, upon which the present appeal should be allowed. It is not denied on behalf of the respondents that, on the application of the 10th of Nov. 1906, a notice under Sec. 248 of the Code of Civil Procedure of 1882 was issued, though not served upon the judgment-debtors. Under Clause (5) of Art. 179 of Schedule II of the Indian Limitation Act of 1877 time would commence to run against the appellant from the date of such notice. The learned District Judge has, however, held against the appellant on the ground that if the application without a certificate could not be entertained by the Court, no notice would be necessary under the Civil Procedure Code, and the issue of such a notice could not be of any use. It seems to me, however, that if an application for execution is presented and a notice is issued by the Court as provided by the Civil Procedure Code, the applicant is entitled to take advantage of the fact of the issue of such notice even though the application may be defective owing to the absence of a Conciliator's certificate.

(3.) The result, therefore, is that the order of the lower Court is set aside and the application sent back to that Court for disposal according to law. Costs to be costs in the application.