RAMGOPAL SHRIRAM Vs. RAMGOPAL BHUTADA

JUDGEMENT

(1.) This appeal arises in execution proceedings of a decree obtained by the present respondent against the appellants, who are the judgment-debtors. The decree was passed on November 24, 1923, for Rs. 5,550 in suit No. 973 of 1921. Two years later, another suit was filed by the present appellants against the respondent. That was suit No. 1169 of 1923 in which the appellants ultimately got a decree in their favour against the respondent on February 20, 1925. An appeal was filed against this latter decree by the present respondent on June 15, 1925, and that appeal was decided finally on January 27, 1930, by the appellate Court, which confirmed the trial Court's decree.

(2.) Now, the events that led to this appeal arose in this way

(3.) The present respondent filed his darkhast No. 70 of 1924 against the appellants on January 16, 1924, and therein he applied for the execution of the whole of the decree obtained by him, i. e., to recover Rs. 5,550 with interest and costs. After this darkhast was filed, the cross-suit against the present respondent was disposed of, as I have stated, on February 20, 1925, and it appears from an order passed by the executing Court on March 9, 1925, that there was an agreement between the parties to the following effect, when both the suits were going on. The agreement was that after the two decrees were passed, the party who was entitled to the larger amount should pursue execution of the decree in his favour to the extent of the excess. In virtue of that agreement the executing Court seems to have disposed of the darkhast on March 9, 1925, stating that execution can only lie for the excess amount and not for the amount decreed in the respondent's favour. Then, on February 20, 1928, the respondent filed a second darkhast No. 374 of 1928 for execution of the whole of the decree obtained by him against the appellants. It appears that in that darkhast the present appellants had objected that that darkhast was time-barred, that the execution could lie only for the excess and not for the whole amount, but that darkhast was dismissed, without going into these contentions, on June 20, 1928. A third darkhast No. 2062 of 1929 was filed by the respondent against the appellants on November 18, 1929, to recover the excess, that is the balance remaining in his favour after deducting the amount of Rs. 4,068 decreed against him. In that darkhast it was held by the Court on September 8,1930, that the darkhast was in time, but that it was premature, because the appeal which was filed by the present respondent in the decree passed against him in favour of the appellants was not decided at the time of the application, and it appears that that order was made on account of the written statement filed by the present appellants in that darkhast on January 20, 1930, in which they stated that the darkhast should be suspended as the respondent had filed an appeal against the decree obtained against him by the appellants. It appears that the respondent acquiesced in that contention and that darkhast was disposed of by the Court, even though it appears that before the date of the disposal of this darkhast, the appeal was decided on January 27, 1930, and the ground of appeal seems to be that as an appeal was pending at the time when these execution proceedings were going on and as the execution proceedings were filed only for the balance the application itself could not lie. Then the respondent filed the present darkhast, from which this appeal has been preferred, on October 30, 1930, in which he asks for the excess amount only as against the appellants.