DAYARAM BHAKTIBHAI Vs. MAGANLAL SUNDERJI

JUDGEMENT

(1.) THE plaintiffs filed suit No. 111 of 1946-47 in the Court of the Civil Judge, J. D. at Kathor in the former Baroda State against the defendants for a decree for possession of certain agricultural land. A consent decree was passed in the suit on 20-7-1948. The decree provided that the defendant Maganlal Sunderji do deliver possession of the suit land to the plaintiffs on 8-4-1951. It further provided that if the defendant Maganlal Sunderji failed to deliver possession to the plaintiffs, the plaintiffs may take possession through Court by filing an application for execution. It was then provided in the decree that defendant Maganlal Sunderji shall take the produce and shall give certain specified amounts to the plaintiffs. It was also provided that if the defendant Ma ganlal Sunderji failed to make the payment with in the specified time, the plaintiffs were entitled to recover the same from the person and every kind of property of the defendant Maganlal Sun derjee.

(2.) THE State of Baroda merged with the Indian Union on 1-8-1949. The Bombay Tenancy and Agricultural Lands Act of 1948 was made applicable to the area in which the land in dispute is situated on. 30-7-1949. The judgment-debtors having failed to deliver possession of the property on 8-4-1951 the plaintiffs filed darkhast No. 20 of 1951 in the Court of the Civil Judge, Junior Division, at Kathor for executing the decree. The darkhast was resisted by the first defendant Maganlal Sunderjee. The first defendant contended that the darkhast was not maintainable in view of the provisions of the Bombay Agricultural Debtors Relief Act and the Bombay Tenancy and Agricultural Lands Act. 1948. The learned Trial Judge held that the plaintiffs had not applied for any money due and, therefore, the provisions of the B. A. D. R. Act did not come in the way of execution. He further held that the B. T. and A. L. Act of 1948 did not prevent execution of a decree which was passed before the commencement of B. T. and A. L Act of 1948 and in support of that view he relied upon Section 89 (2) (b) (i) of that Act. The learned trial Judge accordingly passed an order directing 'the execution proceedings to proceed according to law'.

(3.) AN appeal was preferred to the District Court at Surat. In appeal the learned Assistant Judge who heard the appeal reversed the order passed by the trial Court and dismissed the darkhast with costs. Against the order of the District Court dismissing the darkhast the plaintiffs have come to this Court in second appeal.