HIRALAL MOHANLAL MUTHA Vs. RAMCHANDRA KUNDANMAL MARWADI

JUDGEMENT

(1.) This is an application for revision of an order of the District Court of Ahmednagar reversing the order of the Second Class Subordinate Judge, Shevgaon. The main ground in support of the application for revision is that the District Court in maintaining an appeal from the order of the Subordinate Judge exercised a jurisdiction which was not vested in it by law.

(2.) The facts found by the District Judge are set out in his judgment as follows : The appellant decree-holder purchased the house of the respondent No. 2 judgment-debtor at a Court auction for the amount of the decree. The sale certificate was issued to the appellant in due course. When, however, he sought to take possession of the house he found it locked and hence came to the Court to have the look removed, A notice was issued for this purpose to the judgment- debtor who appeared in the Court and put forward the plea that he had arrived at a compromise with the appellant whereunder the appellant was to receive Rs. 1,000 and give up his claim to the house. The learned Subordinate Judge upheld this defence and rejected the darkhast with costs. Hence this appeal.

(3.) On these facts the District Judge came to the conclusion that the applicant judgment- debtor's plea before the Subordinate Judge amounted virtually to relying on an adjustment of the decree out of Court. He relied on the ruling of this Court in Gomesh V/s. Yeshwant (1922) 25 Bom. L.R. 247 in holding that as the adjustment of the decree had not been certified and the time for obtaining such certificate had since expired it could not be relied on. He held that the proper course for the lower Court was to adopt the proceedings prescribed under Order XXI, Rule 95, of the Civil Procedure Code, and hence directed the Subordinate Judge to adopt such a course so far as the darkhast made by the opponent was concerned.