RAMKRISHNA VITHAL KULKARNI Vs. RAMCHANDRA DATTATRAYA GARAWARE

JUDGEMENT

(1.) The facts which have given rise to this second appeal are as follows:-On February 4, 1911, a conciliator who was appointed under the provisions of the Dekkhan Agriculturists Relief Act filed his agreement or award in Court in respect of disputes then existing between the mortgagee and the mortgagor of a certain property. The mortgagee at the time of the award was a minor who died in the year 193 7 being then still a minor without having executed the award which was in his favour. He left a widow, who also was a minor, as his heir according to Hindu law. The widow attained majority in the year 1923, and, within three years thereafter, in 1926 filed the present darkhast for executing the conciliator's award. It is conceded by Mr. Gajendragadkar on behalf of the appellant, the original judgment debtor's heir, that if we were to follow the ruling in Moro Sadashiv V/s. Visaji Raghunath (1891) I.L.R. 16 Bom. 536 the execution proceedings would be in time. He urges, however, that we should refer the point to a Full Bench on the ground that the ruling is an old one and that, although it has not been overruled in this Court, two other High Courts have dissented from it-the High Court of Madras in Mamana V/s. Babu (1912) I.L.R. 37 Mad. 186 , and the High Court of Allahabad in Prem Nath Tiwari V/s. Chatarpal Man Tiwari (1915) I.L.R. 37 All. 638. He has also pointed out that the decision in Moro Sadashiv V/s. Visaji Raghu-nath was given on a reference at which no party had appeared to assist the Court with arguments. Mr. Gajendragadkar has addressed an able argument before us contending that Section 6 of the Indian Limitation Act does not govern Section 48 of the Civil Procedure Code, and that it should be held that an application for execution, falling as it does under Section 48 of the Civil Procedure Code, would not be saved by Section 6 of the Indian Limitation Act from being time-barred.

(2.) In our opinion Moro Sadashiv V/s. Visaji Raghunath has been considered to be an authority in this Court for so long that it may now be regarded as having become an established principle so far as this High Court is concerned, Whatever views the other High Courts may hold on this subject it has not been shown that the view taken in Moro Sadashiv V/s. Visaji Raghunath is contrary to the principles of natural justice or has caused any undue hardship or inconvenience to parties.

(3.) The second point urged by Mr. Gajendragadkar on behalf of the appellant is that before applying for execution it was necessary for the judgment-creditor to have applied for and obtained an order making the decree in his favour a decree absolute or final decree. He relies on the rulings in Ramji V/s. Pandharinath (1918) I.L.R. 43 Bom. 477, s.c. 21 Bom. L.R. 56. The rulings of this Court in Kashinath Vinayah V/s. Rama Daji (1916) I.L.R. 40 Bom. 492, s.c. 18 Bom. L.R. 475 Hirachand Khemchand V/s. Aba Lala (1921) I.L.R. 46 Bom. 761, s.c. 24 Bom. L.R. 269 , and Suklya V/s. Suklal are authorities for the contrary proposition. If Ramji v. Pandharinath is to be taken as being in conflict with the rulings in these three cases we would consider that the preponderating weight of authority is on the side of holding, as the lower Court has held, that a mortgage decree under the Dekkhan Agriculturists Relief Act does not require to be made absolute before it can be treated as final and effective.