PRABHULING APPA KHANGOUDA DESAI Vs. GURUNATH BALAJI KALKUNDRI

JUDGEMENT

(1.) This is a first appeal from the decision of the learned Subordinate Judge in Dar-khast No. 321 of 1917. The original suit was decided and a decree was passed in the Sangli Court on the 18th of September 1907. The first Darkhast presented to the Sangli Court ended on the 25th of June 1907 without any result as the decree-holder failed to pay process fees. The second darkhast was filed in the same Court on the 11th of November 1907 and on the 14th of that month that Court transferred the proceedings to the Court at Shahapur. The Darkhast ended on the 24th of March 1915 after the recovery of Rs. 11,412-3-0. The third Darkhast was presented in the Sangli Court on 9th of August 1915. It proved ineffectual and was disposed of on the 10th of November 1915. The next Darkhast was presented in the Belgaum Court (Darkhast No. 476 of 1915) and was disposed of without result on the 26th of May 1917. The Darkhast under appeal was presented to the Belgaum Court on the 27th of August 1917.

(2.) It was contended that the Darkhast was barred by limitation but the Court ordered the Darkhast to proceed. It is now argued that the period from 1907 to the 10th of November 1915 during which the execution, proceedings were pending in the Sangli and Shahapur Courts does not save limitation as those Courts were not proper Courts within the meaning of Article 182, Clause (5) of the Indian Limitation Act. "Proper Court" under Article 182, Explanation II, means the Court whose duty it is to execute a decree or order. It is difficult then to see how it can be said that the Sangli and Shahapur Courts were not proper Courts within the meaning of Article 182. I do not see how the ruling cited--Ndbibhai Vazirbhai v. Dayabhai Amulakh (1916) 40 Bom. 504--would affect the question. That case only decided that when a decree was incapable of execution in British Courts owing to its being barred on account of the British law of limitation, it made no difference that a different law was applicable to the Courts from whose jurisdiction the decree had been transferred for execution. Under Section 44 of the Code the Governor-General in Council may by notification in the Gazette of India declare that the decrees of any civil or revenue Courts situated in the territory of any Native Prince or State in alliance with His Majesty and not established or continued by the authority of the Governor-General in Council or any class of such decrees may be executed in British India as if they had been passed by the Courts of British India. Therefore when this decree was transferred for execution to the Belgaum Court, it had to be treated exactly in the same way as if it had been passed by the Court at Belgaum. The period occupied by the execution proceedings in the Sangli and Shahapur Courts must be treated as if the execution proceedings were pending in proper Courts within the meaning of Article 182.

(3.) Then it was suggested that limitation began from the time the second Darkhast was filed in the Sangli Court, that fresh proceedings had not been instituted within three years of that date, although as a matter of fact the Darkhast was continued and money was being recovered under it until the 24th of March 1915. If a Darkhast is filed and the Court directs instalments to be paid under it and recovers instalments, it cannot be that while the instalments are being recovered any further proceedings are necessary : Bapuchand v. Mugutrao (1896) 22 Bom. 340. Assuming that the third Darkhast presented on the 9th of August 1915 would have been held to be barred by limitation if the point had been taken, the point was not taken, and proceedings continued under that Darkhast until it was disposed of on the 10th of November 1915, then the next Darkhast which was presented in the Belgaum Court and continued until it was disposed of on the 12th of May 1917 was within time. In Desaippa v. Dundappa (1919) 44 Bom. 227 the same question came up before Mr. Justice Heaton and myself, and following the decision of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry (1881) L.R. 8 I.A. 123 we decided that if an application be admitted and proceedings taken thereunder, although as a matter of fact they would be barred by limitation if an application were made for the disposal of the application on that ground, they provide a new starting point for limitation. Following that decision it is clear that this Darkhast was within three years from the previous Darkhast. Therefore on that ground the appeal fails.