ANNACHARYA SITARAMACHARYA JAHAGIRDAR Vs. NARAYAN PANDURANG

JUDGEMENT

(1.) This appeal involves two questions of law one of which is of some importance.

(2.) The plaintiff obtained a decree against the defendants and in execution of that decree certain property was attached and put up for sale. Before the sale was confirmed the judgment-creditor and the judgment-debtors came to an arrangement and they made a joint application to the Court by which they asked that defendant No. 1 having agreed to pay the whole of the decretal amount together with interest and costs on or before December 29, 1930, the confirmation of the Court sale which took place on July 4, 1929, should be held over until December 29, 1930, in case the defendants paid up that day. If the defendants did not pay, the sale should be confirmed without further delay. The learned Subordinate Judge on this passed an order, dated February 20, 1930, which is set out in the judgment of the lower Court. The order is as follows :- Parties say that they have coma to a compromise understanding in respect of the claim in the Darkhast. In pursuance of that understanding plaintiff chooses not to press for the further continuance of the Darkhast. It is said that defendant has agreed to pay up the amount due within one year failing which the sale already made has to be confirmed without demur. On that understanding the Darkhast is allowed to be withdrawn by the plaintiff decree-holder. If defendant fails to pay up money as provided, plaintiff to be at liberty to apply for confirmation of the sale in pursuance of the compromise understanding, and the Court will see to the order of the kind being passed later. For the present the Darkhast is allowed to be withdrawn.

(3.) The judgment-debtor did not pay and therefore the decree-holder applied to the Court asking the Court to take action conformably to the order passed on February 20, 1930, and for confirmation of the sale. The opponents contended that the darkhast having already been withdrawn the only remedy of the judgment-creditor was to present a fresh darkhast. But that contention was overruled by the lower Court on the authority of certain cases which have been quoted and the application was allowed. The order was: "Darkhast No. 535 of 1927 to be sent to the Collector for further action." The judgment-debtor has appealed.