NARHAR RAGHUNATH NAPHAD Vs. KRISHNAJI GOVIND NADGAVANDI

JUDGEMENT

(1.) In holding the execution of the decree in the darkhast before us barred under Section 48 of the Code of Civil Procedure, the lower Court has overlooked the important consideration that the decree contemplated by the section should have been in all its parts ripe for execution on the date from which the twelve years period of limitation is computed.

(2.) The decree in the present case was passed on the 14th of December 1892 and the present darkhast was presented on the 14th of December 1910. The decree consisted of four parts. In the first place, it directed that its holders should be put in possession of certain land, mortgaged to them by the judgment-debtors, and that the former should enjoy the profits of the land for twenty years, in satisfaction of the amount due on the mortgage. The second part ordered the judgment-debtors to pay to the decree-holders a certain amount of money annually in the nature of cash allowance. The third part directed that if in any year the judgment-debtors should fail to make the payment, the decree-holders should bring to sale the mortgaged land and get the money debt satisfied out of the sale proceeds. Lastly-and this is the part of the decree with which we are now concerned for the purposes of the twelve years limitation under Section 48-the decree provided that if there should be " any deceit or any just and legal obstruction of whatever nature " to the mortgaged property being sold, the decree-holders should recover the deficiency or whatever might be due in respect of the cash allowance from the judgment-debtors " personally and from their other property." 11 The judgment-debtors made default in the payment of the r] cash allowance in 1893 with the result that the decree-holders, in compliance with the terms of the third part of the decree, brought the mortgaged property to sale under an order of the Court in execution. A part of the land was sold; but as the proceeds of the sale were not sufficient to satisfy the full amount of the debt, they were about to bring to sale the rest of the mortgaged property when the Collector intervened and had the impending sale stopped on the ground that it was Vatan property.

(3.) It was at this point-in the year 1908-that the decree became for the first time capable of execution in respect of the personal remedy given to the decree-holders in the fourth and last part. Until then, in respect of that part and that remedy, the decree was merely ancillary and provisional. The decree-holders could not till that point of time make any application for execution which it was in the power of the Court to grant, because till then there was no decree ripe for execution, so far as the personal remedy was concerned.