HANMANT NARAYAN KULKARNI Vs. B R JAINAPUR

JUDGEMENT

(1.) This is an appeal against an order made by the First Class Subordinate Judge of Bijapur in darkhast proceedings. The decree sought to be enforced has attained the respectable age of sixteen years, having been passed on December 22, 1921. The original decree-holder died, and his son Shankargouda who claimed to be his heir was a minor, and was represented by the Nazir of the District Court. In 1933, Shankargouda, acting through the Nazir, filed a darkhast to execute the decree of 1921. In 1934, a third party filed a suit against Shankargouda claiming to be entitled to the estate of the decree-holder, including this particular decree. In that suit two receivers were appointed by the Court, one of the receivers being the Nazir of the District Court. The receivers then applied that they might be at liberty, on behalf of Shankargouda, to execute the decree, and that application seems to have led to some confusion of thought on the part of two learned First Class Subordinate Judges. The first Judge raised two issues :-

(2.) We think that the proper order to make on this appeal is to strike out from the order under appeal the direction that the receivers be brought on record, and to direct that they be at liberty to continue the darkhast in the name of Shankargouda on indemnifying him out of any assets in their hands against the costs of the darkhast proceedings. It will of course be open to the judgment-debtor to maintain that Shankargouda is not entitled to the decree. If he succeeds in that claim, presumably the darkhast will fail. But there is no method of avoiding that risk in view of the fact that any fresh darkhast is out of time.

(3.) As the appeal has failed in part and succeeded in part, we make no order as to costs.