LAXMIRAM LALLUBHAI JOSHI Vs. BHALASHANKAR VENIRAM MEHTA

JUDGEMENT

(1.) The facts in this case are somewhat unusual. There was an ordinary mortgage decree of the year 1903. The mortgagee applied for execution in due course on the 8th of August 1905. In January 1906 the mortgagor applied under the old Code of Civil Procedure to be declared an insolvent. In his application of August 1905 the mortgagee asked that the property might be sold, but did not seek any further relief against the mortgagor. Accordingly in June 1906 the property was sold under this Darkhast. In September of the same year the Court declared the mortgagor an insolvent, although under Section 351 it did not discharge him. In December of the same year the Court struck off the Darkhast of August the 8th, 1905, for two reasons: (1) that it had been satisfied, (2) that the judgment-debtor was now an adjudicated SHANKAK insolvent. The mortgagee appeared from the first in the insolvency proceedings as the sole opposing creditor.

(2.) We might find some difficulty, more, speaking for my self, I think a verbal than a real difficulty in bringing such appearance within the meaning of the words " application to take some step-in-aid of execution" under Article 179 (old), now Article 182. But as the result of those proceedings was against him, the creditor, appellant here, appsaled to the District Court and succeeded. We think that it is not putting too great a strain upon ordinary language to say that an appeal in such circumstances fairly falls within the meaning of the words " an application to take a step-in-aid of execution." It is clear that as long as the insolvency proceedings went in favour of the debtor, the creditor could not have presented any application in ordinary course for the further execution of his decree with the least hope of success. Two at least of the High Courts in India had already put so liberal a construction upon the insolvency provisions of the old Civil Procedure Code that an executing creditor must have foreseen that no application for the execution of the decree either by sale of property or arrest of the person of the judgment-debtor could have the least chance of success so long as the judgment-debtor had been declared an insolvent under Section 351, even although he had not been actually discharged within the meaning of Section 357. So that we think that in view of the Court s finding that this judgment-debtor was an insolvent early in 1906, the present appellant had no other course open to him than in the first instance to get this bar to the further execution of his decree removed, and the only way in which he could hope to obtain that result would be by first opposing the insolvency petition in the first Court, and, if he failed there, by appealing to higher authority. This he did, and although it is unnecessary to trace the subsequent tedious proceedings, it is sufficient to say that his last appeal could not have been made earlier than January 1909, that is to say, well within three years of his present Darkhast.

(3.) Adopting that view, it is unnecessary to enter into any of the other nice and difficult questions which have been raised and adequately argued in the course of this appeal. We do not seek to lay down any general principle upon any of those questions, but we desire to confine our judgment to the rather unusual facts before us, and we think that we do no violence to the meaning of Article 179 (old), now Article 182, by holding that the present Darkhast is within three years of the last application made by the judgment-creditor to a Court to take some step-in-aid of the execution of his decree. For these reasons we think that the appeal ought to be allowed and the judgment of the Court below reversed. We direct, therefore, that the Darkhast be restored and that execution do proceed upon it according to law. We think that this appeal must be allowed with all costs.