BALKRISHNA EKNATH Vs. SHANTILAL HEMCHAND

JUDGEMENT

(1.) THIS appeal is by the plaintiff against the dismissal of his suit by the Civil Judge, Senior Division, Nasik, for a declaration that the final decree obtained by one Kesharbai in Special Civil Suit No. 253 of 1933 is without jurisdiction and as such is nullity.

(2.) THE plaintiff had borrowed from one Hemchand Bhaichand Gujarathi a sum of Rs. 8,820 on a simple mortgage. Hemraj instituted Special Civil Suit No. 253 of 1933 on the mortgage and on the 29th September 1933 obtained a preliminary decree. For some time nothing was done on that preliminary decree but in the meantime a creditor of Hemraj by name Vrajlal Nyahalchand obtained a money decree in Small Cause Suit No. 21808 of 1934 against him and ia execution of that decree in Regular Darkhast No. 419 of 1935 he attached the preliminary decree obtained by Hemchand against the plaintiff. The attachment was levied on the 10th of August 1935. In pursuance to that attachment Vrajlal made an application for final decree on the 25th March 1936 and obtained a final decree on the 13th September 1936 against the plaintiff. When the attachment of the preliminary decree was imminent Hemraj assigned his rights in the preliminary decree to his wife. Kesharbai, on the 6th of March 1935 or the document may have been antedated. Even though apparently she had obtained assignment on the 6th of March 1935 she did nothing, right till the 17th October 1933 -- four months after the final decree was already passed by the Court in favour of Vrajlal. She made an application for a final decree against the plaintiff in the same Court. The Court on that application in fact made a final decree on the 13th January 1937 and it appears that both the decree-holders attempted! to execute the decree against the judgment-debtor. We are not in position to know what has happened to the Darkhast filed by Vrajlal, but Kesharbai's Darkhast No. 3 of 1947 is still pending. Because the plaintiff contended that he was a debtor the Darkhast was transferred to the Debt Adjustment! Court but thereafter was returned to the executing Court for execution. When the sale of the plaintiff's property became imminent the plaintiff instituted the present suit on the 7th July 1954 for a declaration of nullity of the decree in favour of Kesharbai and consequential relief.

(3.) THE defendant is the heir and successor of Kesharbai who had orginally obtained the decree and it appears that in the Darkhast filed by Kesharbai, which is Darkhast No. 3 of 1947, the defendant is seeking to continue execution. In his written statement he raised several contentions. The main and substantial contention being that the preliminary decree obtained by Hemchand was assigned by him to his wife on the 6th of March 1935 and, therefore, Vrajlal could not obtain a final decree on his attachment which was levied on 10th August 1935; and She became the owner of the preliminary decree and she got a final decree passed in her favour on the 13th January 1937 and, therefore, she became entitled to execute the same. He contended that thet attachment made by the creditor of Hemchand on that decree was illegal. He contended that this is a suit for postponing the sale of the property. He then contended that it is false to say that the power of the Court to pass a final decree in favour of Kesharbai had come to an end. He denied that Kesharbai had obtained the final decree fraudulently, and stated that the plaintiff was aware of all the orders and the proceedings in regard to the Special Civil Suit No. 253 of 1933, with the result that he is estopped from challenging the validity of these orders: