DAYABHAI CHUNILAL GHANCHI Vs. BAI UJAM

JUDGEMENT

(1.) This is an application in execution of a decree in a partition suit, which was passed on the 1st April 1908. On the 10th January 19 LO, it was varied to some extent in appeal, but the direction in the decree was that the house was to be sold and the proceeds divided between the parties. The plaintiff being under the impression that the decree in a partition suit was a preliminary decree and required a further decree to make it final, applied to the Court, on 23rd October 1912, to have the decree made final, and the decree was made final on the 10th of February 1913. The application was considered by the Court and it was ordered in the presence of the plaintiff s Vakil and the defendant No. l s Vakil, the other defendants being absent, that the said decree was made final.

(2.) On the 8th October 1913, the plaintiff presented a Darkhast and notice was issued, but it was dismissed on the 25th April 1914 for default. The present Darkhast was issued on the 9th August 1916. Clearly it was within three years of the previous Darkhast. But it is contended that the previous Darkhast was out of time, therefore this Darkhast was also out of time. It is argued that the first Darkhast of October 1913 was out of time, because the application for final decree and the order made on that application were not made in accordance with law. I do not think that Article 182(5) really applies. 1920 The date of the decree of which execution is sought is 10th February 1913. The application to make a preliminary decree final is not a step-in-execution. It is the final decree which is executed. However that may be, the suggestion that this order of the Court of the 10th of February was not in accordance with law cannot be sustained for a moment. The Court may have been wrong in entertaining the application of the plaintiff, but as has often been remarked, the Court has jurisdiction to decide wrong as well as right, and it would be going to a very great length to say that any decision which the Court has arrived at, which differs from the decision of another Court, is not in accordance with law. The plaintiff has got a decree, in execution of which the property had to be partitioned; and the defendant is obviously obstructing execution of the decree. The appeal must be allowed with costs throughout and execution must proceed on the Darkhast. Fawcett, J.

(3.) The defendant did not appeal from the order of the 10th of February 1913, and therefore it comes within the principle laid down by the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry (1881) L.R. 8 I.A. 123, that although the order may have been erroneously made, yet it must be considered nevertheless valid. That case has been followed by this Court in Dalichand Bhudar v. Bai Shivkor (1920) I.L.R. 15 Bom. 242 and Desaiappa v. Dundappa (1919) 22 Bom. L.R. 76 and under those rulings I do not think it is now open to the defendant to say that the particular application, on which the order of the 10th of February was passed, is not in accordance with law, I agree, therefore, in allowing the appeal with costs.