JAGDISHGIR LAXAMANGIR GOSAVI Vs. RANGACHARYA GURURACHARYA SWAMI RAMBAGWALE

JUDGEMENT

(1.) The above Letters Patent Appeal is filed against the order of summary dismissal of first appeal No. 35 of 1974. The appellants are the judgment- debtors against whom a consent decree was passed in Special Civil Suit No. 50 of 1949, filed by the respondents-decree-holders' legal representatives. The suit was to recover the amount due on a mortgage dated September 10, 1945 of Rupees 7000/-. There is now no dispute that the present special darkhast No. 89 of 1960 to execute that decree is within time. It is not necessary to refer to the objections filed by the judgment-debtors as all those objections were overruled. We are now concerned only with the objections of the judgment debtors to the execution that were raised subsequent to the order of sale of the mortgage property, dated July 15, 1971.

(2.) The executing Court appointed a Commissioner to ascertain whether there was no truth in the Biliff's report stating that the mortgaged property had ceased to exist in the condition in which it was mortgaged. The Commissioner reported that it had ceased to exist in that condition. Thereupon the decree- holder filed an application Ex. 128 in the darkhast on October 29 1971 for issuing an order of attachment of his movable and for realizing the decretal amount by the said attachment and sale of the movable. The decree-holder also filed an application for attachment of property bearing city survey No. 4373 situated in Pandharpur.

(3.) The applications were opposed by the judgment-debtors by filling their objections at Ex. 143. They contended that these applications for amendments of the Darkhast were barred y time and on some other grounds that were described as "minor grounds" by the learned Judge. The learned Judge heard these objections and by his judgment and order dated November 22, 1973 allowed the amendments following a decision of this Court in Manmappa Shiddappa v. Ningappa Rangappa, 49 Bom LR 673 = (AIR 1948 Bom 116) the head-note of which runs as follows: