GULAPPA RUDRAPPA ERSHETTI Vs. ERAVA BASANAGOWDA PATIL

JUDGEMENT

(1.) The plaintiff applied for execution of the decree in Suit No. 261 of 1903, which was passed on the 25 February 1904 in a mortgage suit giving the usual six months time for payment under Section 88 of the Transfer of Property Act. The present Darkhast was filed on the 7th September 1915; and the decision now appealed from was dated 10 July 1920. At that time the decision in Desaiappa V/s. Dundappa (1919) 22 Bom. L.R. 76 had not been reported; therefore, there was some excuse for the order dismissing the Darkhast.

(2.) The plaintiff sought for execution of his decree by a Darkhast filed on the 12 June 1907. Notice was issued to the defendants. On their failure to appear, an order absolute for sale was made on the 2 October, 1907, but as the plaintiff took no further steps in paying necessary fees, the Darkhast was eventually dismissed. Before the present Civil Procedure Code came into force, the proper procedure in the case of a decree under Section 88 of the Transfer of Property Act was to apply for execution, and not to apply for a final decree. But if time be taken to run against the decree-holder from the date of the decree, and not from the end of the six months, the period allowed for payment then that Darkhast was presented more than three years after the decree. But no objection was taken by the Court, and an order was made on the Darkhast that the property should be sold.

(3.) Then, on the 13 June 1910, the plaintiff filed a Darkhast praying for the sale of the property, but that Darkhast was dismissed on the ground that the new Civil P. C. required that the preliminary decree in a mortgage suit should be made final, and the plaintiff had not applied for a final decree. That clearly was a wrong decisions But the Plaintiff was entitled to accept the order of the accordingly, on the 7 October 1912, he applied for a final decree, but that application was dismissed for non-payment of process fees. He made a similar application on the 7 November 1913, but withdrew from it before any notice of it was served on the defendants. Another Darkhast was filed on the 26 February 1915 which was again dismissed for non-payment of process. Then this Darkhaat was filed on the 7th September 1915.