BAPURAO Vs. HANUMANTHRAO

JUDGEMENT

(1.) THERE is no dispute as regards the facts of this case. The decision of this case turns upon the interpretation of Section 262, Civil P.C, with reference to the particular facts of this case. This appeal has been filed by the legal representative of the judgment -debtor in execution proceedings. The predecessor -in -interest of the respondent obtained a decree against the predecessor -in -interest of the present appellant on 12th Farwardi 1307 Fasli which was as follows:

(2.) THE decree -holder filed his first application for execution on 5th Farwardi 1354 Fasli praying that he be given the Iskel of Patwari Giri for 6 years i.e., from 1348 Fasli till 1351 Fasli. The judgment -debtor resisted the execution on three grounds viz., that the decree was a mere declaratory decree and could not be executed; secondly that the application for execution was filed after the lapse of more than 12 years of the date of the decree and that, therefore, the execution application was barred under Section 262. He raised Anr. objection namely that the judgment debtor against whom the decree was passed was dead and now execution was being sought against the legal representatives of the original judgment -debtor and a decree could be executed against the legal representatives of the judgment -debtor only as against the assets of the deceased judgment -debtor in the hands of the legal representative and it could not be said that the Iskel of Patwari Giri was an asset within the meaning of Section 264, Civil P.C., against which execution could be sought. The Courts below have held against the judgment debtor and hence this appeal.

(3.) THE next question tint has to be considered is as to whether the decree that was passed is in the nature of a declaratory decree or whether it is a decree directing payment of an amount at fixed periods recurring year after year. We have gone through the decree. The words of the decree dearly indicate that the decree is one for payment of a half of the iskel of patwari giri which is payable at a particular period year after year. We, therefore, hold that it is not a declaratory decree. Therefore, the question of the excitability of the decree cannot arise. The next argument advanced on behalf of the advocate for the appellant is that the decree does not mention any fixed amount nor U the date stipulated and being indefinite as regards the amount payable and the date when it is payable it is incapable of execution. We are of opinion that there is no force in this argument. In this case the decree does enjoin the payment of half of the iskel of patwari giri, and what the half of the iskel is can very wall be ascertained. It directs the payment of half of the amount that the appellant receives from the revenue by way of iskel (emoluments) of patwari giri. As regards the date, it would be the date on which the appellant is paid the amount by the Revenue Department. The date and the amount could be ascertained from a construction of the decree and this is allowed under the law. On these grounds, we feel that both the contentions of the appellant as regards the inexcusability of the decree cannot stand.