BHIMAPPASAHEB GIREPPASAHEB Vs. RAMAPPA BALAPPA

JUDGEMENT

(1.) This is an appeal against an order passed by the First Class Subordinate Judge, Belgaum, restoring to file a darkhast which had been dismissed for want of prosecution on March 31, 1943. The facts of this case are not in dispute.

(2.) A Darkhast No. 184 of 1940 was filed by the respondent decree-holder in execution of a money decree that he had obtained in Civil Suit No. 347 of 1937. After the institution of the darkhast, the decreeJholder obtained an order for attachment and sale of the property in the hands of the judgment-debtor. On December 3, 1942, the Court ordered a sale proclamation to issue. Thereupon the appellant-judgment-debtor produced a certificate, exhibit 113, under Section 10 of the Watan Act issued by the District Deputy Collector, to the effect that the property was watan property and was not, therefore, liable to be attached and sold in execution of the decree. This certificate was produced on March 15, 1943, and was shown to the pleader of the decree-holder. When the matter came up before the Court on March 30, 1943, the Court in view of the certificate, exhibit 113, ordered that the direction for sale be set aside and attachment be removed. But the decree-holder's pleader was also! asked to take any further steps if he wished to do so by the next day. On March 31, 1943, the decree-holder intimated to the Court that no further step was sought, whereupon the learned Judge proceeded to pass an order dismissing the darkhast. It appears, however, that the decree- holder went in appeal to the Collector against the order of the District Deputy Collector declaring that the property was not liable to be attached and sold in execution of the decree. The Collector, on September 1, 1943, set aside the order of the District Deputy Collector and held that the life interest of the judgment-debtor was liable to be proceeded against and sold. After this, on September 11, 1943, the decree-holder filed an application before the learned Judge praying that the darkhast which had been dismissed on March 31, 1943, be revived. The learned Judge thereupon called back the darkhast from the record and directed that it should be proceeded with from the stage which it had previously reached. He passed an order, for the issue of a sale warrant and proclamation. The defendant-judgment-debtor then filed an application, exhibit 145, dated November 17, 1943, contending that after the darkhast had been finally decided and after the attachment levied on the property had been raised, the said darkhast could not be legally revived and that, therefore, it was incumbent on the darkhastdar to file a fresh darkhast in accordance with law and to ask for reattachment of the lands before bringing them to auction sale. On this, the learned Judge passed an order that- the dismissal of the darkhast was not on account of any default on the decree- holder's part but only because the certificate under Section 10 of the Watan Act had beenl produced by the judgment-debtor. That certificate having been set aside by a competent authority, the decree-holder quite properly moved the Court to cancel the order of dismissal of the darkhast and to proceed with it from the stage which it had previously reached.

(3.) The learned Judge held that it was the duty of the Court to redress the wrong and rectify what turned out to be an error. Exercising his power under Section 151 of the Civil Procedure Code, the Court held that the order passed on October 11, 1943, reviving the darkhast was right and rejected the contentions of the judgment-debtor. It is against that order that this: appeal has been filed.