PURSHOTTAM BHAGWANT SULAKHE Vs. SURYAKANT GOPAL SULAKHE

JUDGEMENT

(1.) This Letters Patent appeal by the original decree-holders raises some question of importance as to the interpretation of Section 144 of the Civil P. C. and Order 21, Rule 2 thereof. In Special civil Suit No. 103 of 1946 the Court of the Civil Judge, Senior Division, Sholapur, passed a decree on 29-2-1960 against Suryakant, hereinafter referred to as the applicant, and several other defendants. The decree was for payment of Rs. 74,449-13-8 with 6 per cent interest as also for possession of the property by partition. The defendants were made liable for payment for the satisfaction of the said decree, jointly and severally. This decree has been modified by this Court on 9-10-1967 in First Appeal No. 278 of 1960. As a result thereof the defendant ceased to be liable to pay any money to the plaintiff. We are informed at the Bar that an appeal against the judgment of this Court dated 9-10-1967 is still pending in the Supreme Court.

(2.) In the meanwhile, the decree-holder started execution proceedings against the judgment-debtors. Properties of some judgment-debtors appear to have been attached in an attempt to put the same to sale. No process, however, appears to have been issued against suryakant for any relief whatsoever in the said execution proceedings till, at any rate, 28th Oct. , 1962. On that date Suryakant executed a registered sale-deed of his house property for a consideration of Rs. 4,000/ -. Recital in the sale-deed indicates that the sale consideration was not paid in cash but was agreed to be adjusted towards the monetary liability under the decree in Suit no. 103 of 1946. Suryakant also claims to have paid a sum of Rs. 2,500/- in cash in addition towards the decretal dues, at the time when the said sale-deed was executed.

(3.) After the judgment of this High Court on 9-10-1967, Suryakant filed an application under section 144 of the Civil P. C. being Miscellaneous Application No. 244 of 1970 giving rise to the present Letters Patent Appeal. He prayed for return of his house to him, which he had sold earlier on 20-10-1962 for satisfaction of the part of the decretal dues and of Rs. 2,500 paid by him. In the alternative he also sought permission of the Court to convert the said application into a suit which was permissible under Section 47 (2) of the Civil P. C. , as it then stood.