LAXMAN MAHADEV BANKAR Vs. MARUTI RAMBHAU NIKAM

JUDGEMENT

(1.) THIS is an application in revision against an order of the Assistant Judge of Poona directing an amendment of the decree passed by his predecessor in Appeal No.23 of 1930, in such a way as to make the decretal amount a charge on the property in suit.

(2.) THE facts of the case may be briefly stated. THE property in suit belongs to opponents Nos. 2 to 8, Pardeshis of Pimpri. THEy mortgaged it to the petitioner Laxman Mahadev Bankar and had subsequently entered into a contract with opponent No.1 to sell the said property and had received some advance as earnest money. Subsequently opponent No.1 filed a suit to specifically enforce the agreement or, in the alternative, to recover the amounts advanced from time to time together with interest thereon as a charge on the property agreed to be sold. THE trial Court passed a decree in favour of opponent No.1 for Rs. 1,322-7-0 including past interest at the rate of twelve per cent. per annum and future interest at six per cent, per annum and ordered the decretal amount to be a charge on the property. THE Pardeshis filed appeal No.23 of 1930 complaining inter alia that the amount of the charge was held to be more than they had received, that opponent No.1 was not entitled1 to any interest and that the decretal amount should not have been made a charge on the property. THE appellate Court held that the amount advanced was only Rs. 608 and refused to allow any interest on that amount. It reversed the decree of the trial Court and substituted in its place the following order: Plaintiff's claim to the extent of Rs. 608 decreed with costs, in proportion, of both the Courts against defendants Nos. 1 to 7 (Pardeshis ). THE remaining claim of the plaintiff is dismissed with costs. That decree was passed on December 11, 1930. THE petitioner had also obtained an agreement of sale from the Pardeshis on November 8, 1927, and about five months after the decree in appeal No.23 of 1930 was passed, he obtained a sale-deed from the Pardeshis on May 19, 1931, purporting to convey the property in suit to him for Rs. 4,500. Opponent No.1 presented two darkhasts to execute the decree of the appellate Court in 1931 and again in 1932 in which he sought for the attachment and sale of the property for the recovery of his decretal amount. Both these darkhasts were dismissed for want of prosecution, and a third darkhast was presented on February 5, 1935. On the application of the Pardeshi judgment-debtors the petitioner was added as an opponent, as he had purchased the property when the decree was sought to be executed. It was then brought to the notice of opponent No.1 that the decree of the appellate Court had not placed any charge on the property and, therefore, the applicant, who was not a party to the decree, was not bound by it. THE darkhast was then withdrawn, and opponent No.1 presented an application on August 4, 1936, to have the decree in appeal No.23 of 1930 amended by the addition that the decretal amount should be a charge on the property. THE learned Assistant Judge granted the application and amended the decree accordingly.

(3.) MOREOVER, even assuming that the appellate Court intended to create a charge, but omitted to mention it in the decree or in the final order through oversight, still it should not be amended long afterwards so as to prejudice the interests acquired in the intervening period. The petitioner had already obtained a sate-khat as far back as in 1927 from the Pardeshis, but he had not taken a sale-deed during the pendency of the litigation. The appellate Court gave its judgment on December 11, 1930, and after allowing sufficient time and waiting to see if any appeal would be preferred from that decree, the applicant obtained the sale-deed from the Pardeshis on May 19, 1931. During the interval opponent No.1 took no steps to have the decree either amended or modified in appeal. The applicant naturally took the decree as it stood, which expressly reversed the decree of the trial Court and deleted that part which had placed a charge of the decretal amount on the property. It may be that the applicant actively helped the Pardeshis in the prosecution of their litigation against opponent No.1. He helped them with money for appealing against the decree of the trial Court and securing at least a partial success. There was nothing wrong in this, and, if for the satisfaction of the amounts advanced by him he purchased the property which had been freed from the charge by the decree of the appellate Court, it cannot be said that he was not a bona fide purchaser. Of course if the decree had created a charge on the property, then, even though he may have purchased it in good faith, his purchase would have been subject to the charge created by the decree.