MULCHAND MANAJI MARWADI Vs. JAMANBI ABUDULKADIRSAHEB KAJI

JUDGEMENT

(1.) TWO questions arise in this second appeal, (1) whether an application to the Court to pay out money in satisfaction of a decree can be a step-in-aid of execution; (2) whether on the facts of this case the Court can presume that all oral application was made by the judgment-creditors on April 13, 1918, for payment out to them of the sale proceeds of the property deposited in Court. It was decided in Sapuchand V/s. Mugutrao (1896) I.L.R. 22 Bom. 340 that an application by a judgment-creditor for the payment to him of money, which has been paid into Court on his account in execution of his decree, is an application to the Court to take a step-in-aid in execution of the decree within the meaning of Art. 179 of Schedule II of the Indian Limitation Act, We see no difference between money paid into Court to satisfy a decree and money lying in Court as a result of a sale in execution of the decree. We think, therefore, that if an application for payment out was made, it was a step-in-aid of execution. Such an application need not be in writing The question is whether we could presume that such an application was made on April 13, 3918. On that day the pleader of the judgment-creditors was present. A report had been received from the Nazir that Us, 650, sale proceeds of property sold, were with him. Exhibit 54 was a list of bidders at auction. Exh. 53 was a proclamation of sale, and Exh. 55 was the memo of publication. The Nazir was ordered to hand over the money to the pleader for the judgment creditors and report having dope so. This order was passed below Exh. 52 which was the warrant of sale issued on January 18. It is quite true that the Roznama does not state in so many words that the pleader of the judgment- creditors made an application to the Court that the sale proceeds should be paid out to him, and it is contended for the respondent that as the order made by the Court could have been made without such an application, one was not entitled to presume that an application was made by the pleader for the judgment-creditors, Against this the appellant relies on Trimbak V/s. Kashinath (1897) I.L.R. 22 Bom. 722 where it was held that where an order made in aid of execution is of such a nature that the Court would not have made it without an application by the judgment-creditor it may be presumed that due application had been made for it. We would prefer to go further and say that where the facts of a particular case can form a foundation for a fair presumption that an application was made, then the Court would be entitled to presume that it was made. On the facts disclosed in the Roznama of April 13, 1918, we think it is fair to presume that the pleader of the judgment-creditors made an application to the Court that the sale proceeds should be paid out to him. The present Darkhast, which was presented on April 13, 1921, would then be in time.

(2.) WE, therefore, allow the appeal and direct the darkhast to proceed. The appellants to have their costs in this Court and in the lower appellate Court. Costs in the trial Court to be costs in the darkhaut.