BRIJMOHANDAS DAMODARDAS Vs. SADASHIV LAXMAN NAIK

JUDGEMENT

(1.) ONE Gopaldas Damodardas obtained a money decree against the respondents in the Court of the First Class Subordinate Judge at Ahmednagar on October 1, 1930. When the decretal amount fell due, he made an application to that Court on July 11, 1932, to have the decree transferred to the Court of the Second Class Subordinate Judge at Parner for execution. The order transferring the decree was passed on July 26, 1932, and the certificate of non-satisfaction was handed over to the decree-holder Gopaldas on August 8, 1932. Before Gopaldas presented an application for the execution of his decree in the Parner Court under Order XXI, Rule 10, of the Code of Civil Procedure, he died on November 22, 1932. Nothing was done for nearly two years, and on August 18, 1934, the brother and sons of Gopaldas, claiming to be his legal representatives, presented darkhast No.423 of 1934 in the Parner Court to recover the decretal amount in execution of the decree. The respondents were served with notices and they put in their written statement on March 30, 1935, contending that they were agriculturists and as such not liable to be arrested in execution of the decree. Before the question of their status was decided, they put in another application (exhibit 62) on August 24, 1935, contending that as the appellants had not obtained an order from the Court which passed the decree recognising them as the legal representatives of the deceased decree-holder, they had no right to execute the decree in the Parner Court. Before this application was put in by the respondents, the appellants had made an application to the Court of the First Class Subordinate Judge at Ahmednagar on August 8, 1935, requesting that the certified copy of the decree and the certificate of transfer of the decree should be called back from the Parner Court and their names should be substituted as the legal representatives of the deceased decree-holder both in the decree and in the certificate. The Parner Court framed an issue as to whether it had jurisdiction to hear the appellants' application for execution, and holding that as the appellants had obtained no order under Order XXI, Rule 16, from the Court which passed the decree, they had no right to institute the execution proceedings. It dismissed their darkhast with costs. That order was upheld in appeal by the learned District Judge of Ahmednagar on the same ground. The application under Order XXI, Rule 16, was granted by the First Class Subordinate Judge of Ahmednagar, who ordered that the names of the appellants should be shown as the legal representatives of the deceased Gopaldas Damodardas in the decree. Against that order the judgment-debtors appealed and the learned District Judge held that the application made by the appellants was not in the proper form, that they should have made a proper application for execution of the decree and not merely for the substitution of their names as the legal representatives of the deceased, and that that application was incompetent. The appeal was, therefore, allowed and the order passed by the lower Court was set aside. These two second appeals are presented by the legal representatives of the decree-holder Gopaldas, one from the order passed by the learned District Judge confirming the order of the Second Class Subordinate Judge of Parner, and the other from the order of the learned District Judge setting aside the order passed by the First Class Subordinate Judge of Ahmednagar.

(2.) IN the former appeal (S. A. 413 of 1937) it is urged that as the judgment-debtors did not object to the darkhast proceedings started by the appellants in their written statement (exhibit 7), they should be deemed to have waived their right to object to their names being brought on the record by the Parner Court, and also that in any case the Parner Court should have stayed the proceedings in order to enable the appellants to obtain the necessary amended certificate from the Court of the First Class Subordinate Judge at Ahmednagar and should not have dismissed the darkhast.

(3.) THE ruling in Manorath Das' case is more in point. But that ruling is apparently in conflict with the view taken by a division bench of this Court in Raghunath Govind v. Gangaram Yesu (1923) I. L. R. 47 Bom. 643 : S. C. Bom. L. R. 474. In Manorath Das' case the executors under a will of the deceased had obtained a decree on behalf of the legatee. After the legatee attained majority he took over charge of the estate and presented a darkhast in the Court to which the decree had been already transferred at the instance of the executors. It was contended that, as the legal representative of the decree-holder, he should have first obtained an order under Order XXI, Rule 16, from the Court which passed the decree. But he was allowed time to do so, and when he produced such an order when the darkhast was pending, it was held that the order related; back to the date when he became entitled to execute the decree as the legal representative of the decree-holder, and, therefore, the previous proceedings became legal on the production of the order. But the passage already quoted from Raghunath Govind v. Gangaram Yesu shows that unless an order under Order XXI, Rule 16, is obtained by the legal representative he has no right to institute the execution proceedings. I am bound to follow this decision, and therefore the darkhast which was started by the appellants in the Parner Court must be held to be bad from its inception, and cannot be legalised by any waiver on the part of the judgment-debtors or by the production of an order that may be subsequently obtained under Order XXI, Rule 16, from the Court which passed the decree. Hence the Parner Court was not bound to stay the proceedings in order to enable the appellants to obtain such an order from the Ahmednagar Court. THE darkhast was rightly thrown out, and this appeal must be dismissed with costs.