KRISHNA A KHASGIWALE Vs. SITARAM L RATHI

JUDGEMENT

(1.) Both theses appeals arise out of an order passed on 20th March, 1976 by the Second Joint Civil Judge. Senior Division, Poona, directing sale warrant and proclamation for sale of House No. 1111, Budhwar Peth, Poona to be issued in execution proceedings started by the decree-holder. Certain facts are required to be stated in order appreciate the contention raised on behalf of the present appellants.

(2.) The property in dispute which was originally numbered as city Survey No. 20-A and now numbered as 1111 at Budhwar Peth. Poona, admittedly belonged to one Sardar Harihar Khasgiwale who died on 4th February, 1946. He is said to have executed a will on 21st December, 1945 whereby he is said to have created a trust which is described as Shrimant Sardar Hariharrao Kashinathrao Khasgiwale Kuldaivatarchan Kulsansmaram and Dharmapravartan Trust. Admittedly after the death of Harihar Khasgiwale, his son Anant mortgaged five items of property including the house in dispute on 3rd June, 1946 to Laxminarayan Rathi, the original mortgagee and the father of respondent No. 1. On the basis of this mortgage. A suit came to be filed by the mortgagee being Special Civil Suit Nos. 4 of the 1951 in which the liability of the mortgagor was determined on 31st August, 1951, at Rs. 40,000/- and a preliminary decree for sale of the property was passed. The sons of mortgagor Anant who was original defendant in the suit filed, First Appeal No. 109 of 1952 in this Court. In that appeal the original mortgagor, his wife Indirabai and one son of his by name Kashinath were added as respondents. That appeal was partly allowed and the liability was determined at Rs. 23,488/- and the decree-holder was held entitled to interest at 4 per cent per annum from 31st August, 1951 on Rs. 11,744/-. A final decree for sale of the property was passed on 31st August, 1960. It is said that the public trust was registered on 3rd November, 1958. i.e. after the preliminary decree for sale was made by this Court in First Appeal No. 109 of 1952. Darkhast proceedings were taken by the decree-holder by filling a Darkhast on 31st January, 1969 and these appeals arise out of the orders passed in these Darkhast proceedings.

(3.) Three of the sons of the original mortgagor Anant along with one Nandkumar Krishnarao Navgire claiming to be representing the public trust filed a suit on 20th of August, 1971 in the Court of the Civil Judge, Junior Division, Poona, in which the relief sought was that the defendants, i.e. the heirs of the original creditor Laxminarayan, should be restrained from putting the house in dispute to sale in Special Darkhast No. 17 of 1969. Anant had by that time died and his heirs, the widow and four of his other sons were also joined as the defendants. It is to be noted that though the suit originally purported to be one for the declaration also, that part of the claim was amended and there is no prayer asking for a declaration that the house property in question is the property belonging to the public trust. In this suit an injunction was asked for in respect of the sale proceedings. A temporary injunction was granted on 19th February, 1973 till the interim application for stay of execution proceedings was decided on merits. Admittedly this injunction was vacated on 25th March, 1974 by the Court accepting the argument of the decree-holder that as a result of the temporary injunction, execution of the decree passed by the High Court had been stayed. The plaintiffs in that suit do not seem to have challenged this order by taking any further proceedings.