RAMCHANDRA VENKATESH SHOLAPURR Vs. SHRINIVAS KRISHNA KULKARNI

JUDGEMENT

(1.) The petitioner obtained a decree in Suit No. 91 of 1913 in the Court of the Second Class Subordinate Judge at Bagalkot against the opponent on the 2 August, 1913 and filed an application for execution on the 3 July 1915. The application was struck off as notices were not served on the opponent. A second application for execution No. 166 of 1919 was made on 25 June 1919 but it was rejected as time-barred. The decree-holder again applied for execution on the 19 June 1920 relying on an acknowledgment made on the 19 June 1917 and signed by the opponent in a compromise application in a partition suit between himself and his brother. The learned Subordinate Judge said:-"Darkhast was held to be time-barred in a previous application. The point is thus res judicata, The present application must, therefore, be rejected." He decided, therefore, that once a Darkhast had been rejected as time-barred no further Darkhast could be filed. That is not in agreement with the decision in Mahadev v. Trimbakbhat (1918) 21 Bom. L.R. 344. All that was decided in the previous Darkhast of 1919 was that the Darkhast itself was not in time. That would not prevent the executing plaintiff from filing another Darkhast and seeking to bring it within limitation on grounds which were not before the Court when the previous Darkhast was filed. The only ground on which this Darkhast could be rejected would be that the petitioner ought to have relied upon the acknowledgment of June 1917 when he filed the previous Darkhast, and not having done so he is for ever barred from relying upon it. It does not seem to me that the doctrine of res judicata can be extended to that length. I agree with what was said by my brother Shah in the case of Mahadev V/s. Trimbakbhat, which was cited, that in the earlier Darkhast there was no adjudication that the execution of the decree was barred but only that the application was not shown to be in time. I think, therefore, that the rule must be made absolute and that the Darkhast must be returned to the lower Court to be dealt with on the merits.

(2.) Costs to be costs in the Darkhast. Shah, J.

(3.) I agree.