WALCHAND RAMCHAND KOTHARI Vs. YESHWANT DEORAO DESHMUKH

JUDGEMENT

(1.) THIS is an appeal from an order of the Civil Judge, Poona, by which he directed that the darkhast filed by respondent No.1, the decree-holder, should proceed. The facts leading up to this appeal are briefly these.

(2.) RESPONDENT No.1 filed a partnership suit against the appellant, defendant No. I, and respondent No.2, defendant No.2, in the Court of the Joint First Class Subordinate Judge at Poona and a preliminary decree for accounts was passed on February 20, 1931. The final decree was passed on December 6, 1932. On December 5, 1935, the plaintiff paid the deficit in the court-fee as the full court-fee had not been paid when the plaint was presented, and on the same day he applied for transfer of the decree to the Sholapur Court, and pursuant to that application the decree was transferred on February 7, 1935. He filed a darkhast in the Sholapur Court being Darkhast No.333 of 1936 on February 15, 1936. The darkhast was struck off on June 25, 1937. He filed another darkhast being: Darkhast No.946 of 1940 on June 24, 1940, and that darkhast was struck off" on September 9, 1940. On December 3, 1945, he applied to the Poona Court for recalling the decree which had been transferred to the Sholapur Court. On October 4, 1946, he filed the present darkhast for execution of the decree on which the learned Judge made the order from which this appeal is preferred.

(3.) THE next contention urged by the judgment-debtor is that the application for execution is barred under Article 182 of the Indian Limitation Act. Now the material date is September 9, 1940, when darkhast No.946 of 1940 was struck off and the next application as step in execution was made on December 3, 1945, when the decree-holder applied for recalling the decree and the present darkhast was filed on October 4, 1946. Limitation is sought to be saved, firstly, on the grounds, viz. that the decree-holder was prosecuting another civil application for the same relief in another Court without jurisdiction and that period should be excluded under Section 14.Now, the facts with regard to it are these.