GOVIND SADASHIV PATHAK Vs. SADASHIV SHIVRAO NISAL

JUDGEMENT

(1.) This is a Letters Patent appeal which raises the question of the maintainability of a certain darkhast filed by the decree-holder. In our opinion, if the decree- holder finds himself in a position where he cannot execute the decree which he has obtained against the judgment-debtor, he has largely to thank himself. This case is a glaring instance of a litigant obtaining a decree and then doing nothing more than keep it alive by filing darkhast after darkhast.

(2.) The facts briefly are that the appellant, who is the decree-holder, filed a suit in the Ahmednagar Court, being suit No. 5 of 1934, and obtained a money decree against the judgment-debtor, the respondent, on 12-2-1935. The decree was ex parte, and the respondent applied to set aside the ex parte decree, and the Court set aside the ex. parte decree on 5-11-1936. The respondent was again absent and an ex parte decree was again passed on 26-11-1936. On 25-2-1935, the appellant applied to the Ahmednagar Court for the transfer of the decree which had been passed on 12-2-1935, to the Poona Court where the respondent had some property, and the Court made an order transferring the decree and issued the necessary certificate under Order 21, Rule 6. Having obtained the certificate, the appellant filed a darkhast in the Poona Court for execution of the decree of 12-2 1935. This was darkhast No. 547 of 1935. This darkhast was disposed of on 15-1-1936. The appellant filed another darkhast on 11-1-1939, being darkhast No. 52 of 1939. This darkhast was also for the execution of the decree of 12-2-1935. The appellant presented a third darkhast on 31-10-1941, being darkhast No. 20 of 1941. Again this was for the execution of the decree of 12-2-1935. In answer to this darkhast the respondent appeared and filed a written statement. This darkhast was disposed of on 29-9-1942, for non-prosecution. A fourth darkhast was filed again for the execution of the earlier decree on 10-61943, being darkhast No. 887 of 1943, and this was disposed of on 1-2-1946, the respondent having paid Rs. 50 in part satisfaction of the decree. The final darkhast was filed on 12-9-1946, being darkhast No. 63 of 1946, which is the darkhast under appeal, and as before the darkhast was for the execution of the earlier decree. On 21-3-1947, the appellant applied for an amendment of the darkhast and the amendment sought was to insert in the application for execution the following sentence that the said decree, viz. the decree of 12-2-1935, had been revived on 26-11-1936. This amendment was allowed. Then the appellant applied to the Ahmednagar Court for the transfer of the decree of 26-11-1936, and the decree was transferred on 6-6-1947. On 16-6-1947, the appellant applied for another amendment of his darkhast and the amendment he sought was the insertion in column 6 of the darkhast the following: "This Court has received from the Ahmednagar Court on 6-6-1947, the certificate of the decree revived on 26-11-1936."

(3.) This amendment was also granted and the executing Court ordered the execution to proceed. An appeal was preferred from that order which came up before Mr. Justice Bavdekar, and Mr. Justice Bavdekar allowed the appeal and held that the darkhast was not maintainable. The decree-holder has now come to us in this Letters Patent appeal.