CHINAPA KARBASAPA LAKMANHALLI Vs. LADASAHEB BABASAHEB

JUDGEMENT

(1.) The question is whether the darkhast which has been issued in this case is barred by limitation. It is suggested that there was a bar of limitation between the date of the plaintiffs second darkhast of the 18th of June 1904 and his third darkhast of the 26th of June 1907.

(2.) The first point urged by the pleader for the appellants was that there was a step-in-aid of execution on the 31st of August 1904. On that date the notice, which had been issued under Section 245 B calling on the judgment-debtor to show cause why he should not be arrested, was returned served, but the defendant did not appear. Under those circumstances the Code provides by Section 245 B (2), that if appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor. A warrant was issued by the Court for the arrest of the Judgment-debtor and it appears from the roznama that the-plaintiff s pleader was present at the time. There is, however, no record in the roznama or in the proceedings of the case as to any application or requisition by the decree-holder for the issue of a warrant.

(3.) It appears to us, however, from the wording of the section, that this was a case in which the Court would not have issued a warrant without requisition on the part judgment-creditor and under those circumstances we hold that it may be presumed that due application was made on behalf of the decree-hold- There for the issue of a warrant, and if such application was made that would be a step-in- aid of execution. The presumption that such was made may be supported upon the authority of the judgments of the Chief Justice in Dungarsi A.C.J. v. Ujamsi (1897) I.L.R. 22 Bom. 727 and Bapuchand v. Mugutrao (1896) I.L.R. 22 Bom. 340