GANPATIBHATTA UMAMAHESHWARBHATTA Vs. DEVAPPA SHANKARNARAYAN HAVIK

JUDGEMENT

(1.) The plaintiff in this suit got a decree so far back as 1908 for a certain sum of money which was directed to be payable by instalments. If two instalments were in arrears the decree could be executed for the whole amount. But the decree also directed that "the immoveable property of the defendant may be got attached and kept." We do not know what meaning could be attached to those words. Clearly it was ultra vires of the Court if it was intended that the defendant's property should be attached before default had been made in the payment of the instalments. It seems that the plaintiff immediately after the decree was passed took out a Darkhast on 14 August 1908 under which the Court ordered the lands to be attached, but struck off the Darkhast. On the 21 June 1910, the defendant granted a mulgeni lease to the present opponents Nos. 2 and 3. Prior to that the decree-holder had bought from the judgment-debtor a considerable portion of the property which he purported to have attached in 1908, and the terms of the sale provided that in addition to the lands sold the defendant was to pay a small balance to the decree-holder at his convenience within a short time.

(2.) On the 25 July 1910, the decree-holder took out another Darkhast praying for the recovery of the balance by attachment and sale of the lands in dispute, the prayer being to attach and sell by auction the lands in dispute which were already attached. The property was put up for sale by the Collector, but, as there was no bid, the Darkhast was dismissed on the 20 March 1912.

(3.) Then the decree-holder transferred the decree to the present applicant who presented a Darkhast against the judgment-debtor, and that application prayed for the attachment and sale of the lands in dispute. An order for attachment was made, but as no Bhatta was paid the Darkhast was dismissed with costs. Another Darkhast was filed in 1915 praying for the attachment of the moveable property of the judgment-debtor. That was dismissed for want of prosecution. Then the present Darkhast of 1916 was filed praying that the properties now in dispute should be sold for the balance of the decree.