BHIMAPPASAHEB GIREPPASAHEB Vs. RAMAPPA BALAPPA

JUDGEMENT

(1.) THIS is an appeal against an order passed by the First Class Subordinate Judge, Belgaum, restoring to file a darkhast which had been dismissed for want of prosecution on March 31, 1943. The facts of this case are not in dispute.

(2.) A Darkhast No. 184 of 1940 was filed by the respondent decree-holder in execution of a money decree that he had obtained in Civil Suit No. 347 of 1937. After the institution of the darkhast, the decreeJholder obtained an order for attachment and sale of the property in the hands of the judgment-debtor. On December 3, 1942, the Court ordered a sale proclamation to issue. Thereupon the appellant-judgment-debtor produced a certificate, exhibit 113, under Section 10 of the Watan Act issued by the District Deputy Collector, to the effect that the property was watan property and was not, therefore, liable to be attached and sold in execution of the decree. This certificate was produced on March 15, 1943, and was shown to the pleader of the decree-holder. When the matter came up before the Court on March 30, 1943, the Court in view of the certificate, exhibit 113, ordered that the direction for sale be set aside and attachment be removed. But the decree-holder's pleader was also! asked to take any further steps if he wished to do so by the next day. On March 31, 1943, the decree-holder intimated to the Court that no further step was sought, whereupon the learned Judge proceeded to pass an order dismissing the darkhast. It appears, however, that the decree-holder went in appeal to the Collector against the order of the District Deputy Collector declaring that the property was not liable to be attached and sold in execution of the decree. The Collector, on September 1, 1943, set aside the order of the District Deputy Collector and held that the life interest of the judgment-debtor was liable to be proceeded against and sold. After this, on September 11, 1943, the decree-holder filed an application before the learned Judge praying that the darkhast which had been dismissed on March 31, 1943, be revived. The learned Judge thereupon called back the darkhast from the record and directed that it should be proceeded with from the stage which it had previously reached. He passed an order, for the issue of a sale warrant and proclamation. The defendant-judgment-debtor then filed an application, exhibit 145, dated November 17, 1943, contending that after the darkhast had been finally decided and after the attachment levied on the property had been raised, the said darkhast could not be legally revived and that, therefore, it was incumbent on the darkhastdar to file a fresh darkhast in 'accordance with law and to ask for reattachment of the lands before bringing them to auction sale. On this, the learned Judge passed an order that the dismissal of the darkhast was not on account of any default on the decree-holder's part but only because the certificate under Section 10 of the Watan Act had beenl produced by the judgment-debtor. That certificate having been set aside by a competent authority, the decree-holder quite properly moved the Court to cancel the order of dismissal of the darkhast and to proceed with it from the stage which it had previously reached.

(3.) IT would be noticed that the learned Judges came to that conclusion in spite of the fact that a second application for execution was barred, and in a sense by the passing of that order the judgment-debtors lost a valuable right. Even so the High Court held that the old application for execution could be revived. In the present instance, the decree-holder is not barred by limitation from filing a second application in execution, and we see no objection in allowing the revival of the darkhast as it could not be said that the judgment-debtor had acquired any right which would be prejudiced by having recourse to the Court's inherent jurisdiction under Section 151 of the Civil Procedure Code. The ruling in the case referred to above was followed by the same Court in the case of Acharji Bibi v. Swami Shesh Sahm [1939] A. I. R Lah. 233 where the principle, that " the Court had inherent power under Section 151, Civil Procedure Code, to restore an appliaation in execution proceedings which had been dismissed in default, notwithstanding the fact that the applicant had an alternative remedy open " was affirmed. A similar view was taken by the Madras High Court in the case of v. Swamigal v. K. Goundan (1942) A. I. R. Mad. 718 That was a case where the purchaser at the auction sale apprehended obstruction by the defendant and wanted time to take possession of the property with the necessary help of the police. The Court instead of postponing the hearing of the petition to some other date, dismissed it, and it was held by the High Court that " since that was not a case in'which the party was at fault, dismissal of the petition must be considered to be an order adjourning the petition sine die till the petitioner took steps. " In a full bench case of the Madras High Court in Sundaramma v. Abdul Khadar (1932) I. L. R. 56 Mad. 490, F. B. it was held that- " the dismissal of an execution application for non-payment of batta was proper and final and such an application cannot be revived. In order to entitle an application to be treated as one in continuation of or to revive a former application there should have been no final disposal or there should have been a1 wrong dismissal on account of some obstacle which then existed but which was subsequently removed.