TAMMANJI GOVIND KULKARNI Vs. ABDUL RAHIM

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The father of appellants Nos. 1 and 2 executed three mortgages in favour of the respondent. There was an arbitration in respect of them followed by an award and by a decree) on October 29, 1929. The decree was for Rs. 3,000 to be paid in yearly instalments of Rs. 400, and it was directed that in default of payment of any two instalments the defendant would be entitled to recover the entire amount due by sale of the mortgaged property. The first instalment fell due in 1930, but it was not paid. The decree-holder filed a darkhast in 1931. During the pendency of the darkhast, suit No. 485 of 1939 was filed by the judgment-debtor Govind's son Tammaji (appellant No. 1) against Govind, his second son Appaji (appellant No. 2), his wife Akkubai (appellant (No. 3), the decree-holder and Govind's other creditors, including one Mallaya, for partition and a declaration that Govind's debts and his liabilities under the award decree were not binding on his share in the joint family property. On April 14, 1937, a decree was made directing partition to be made and giving a declaration that the award decree passed in favour of the present respondent was binding on the present, appellants as well as on Govind. The first darkhast filed in 1931 under the award decree was disposed of in 1933 on the ground that suit No. 485 of 1932 had not yet been disposed of. The second darkhast No. 530 was filed in 1936. The Court ordered the decree-holder to produce certified extracts from the Record of Rights, but as they were not produced the darkhast was struck off on August 29, 1937. Thereafter the present darkhast, No. 1011 of 1937, was filed on November 1, 1937, that is, after the date of the decree in suit No. 485 of 1932, against Govind only. The decree-holder prayed that the amount due be recovered by! sale of the mortgaged property. The notice to the judgment- debtor under Order XXI, Rule 22 was duly served, but he remained absent. The Court ordered on March 14, 1938: "Sale of sufficient portion of mortgaged property through Collector is ordered. <JGN>Sen</JGN> d papers to Collector." Govind the judgment-debtor died on January 18, 1941. An application was made to bring the present appellants on record as his heirs and they were brought on the record on February 18, 1941. They filed their written statement (exhibit 37) on October 27, 1941. Therein they contended that the decree-holder being aware of the decree in suit No. 485 of 1932 for partition and the applicants not having been made parties to the darkhast, he could not proceed against them or their separate shares in the family property At the hearing they raised three contentions: (1) that one Mallaya had a half share in the decree under execution and, therefore, he was a necessary party; (2) that the decree-holder's previous darkhast No. 530 of 1936 having been disposed of for non-production of the certified extracts of the Record of Rights, that is, for non-compliance with the requirements of Order XXI, Rule 14, under Order XXI, Rule 17(1), the darkhast application was not an application in accordance with law and that, therefore, the present darkhast was not in time under Article 182(5) of the schedule to the Indian Limitation Act; and (3) that as the darkhast had not been filed against them with respect to their own rights which were now separate from those of Govind, the decree-holder also having been aware of the partition, their shares in the mortgaged property were not liable to be sold. The Court negatived all these contentions and ordered the papers to be sent to the Collector for sale of the mortgaged property. There was an appeal to the District Court which summarily dismissed it. The appellants have now raised the same contentions as urged before the trial Court in this appeal.

(2.) As to the question whether Mallaya is a necessary party to this darkhast, it is true that in suit No. 485 of 1932, Mallaya was one of the defendants and there he was described as a decree-holder under another award decree against Govind. But the decree I am concerned with makes no mention of Mallaya. In the present darkhast the decree-holder made an application asking that Mallaya should be made a party on the ground that he had a half share in the decretal amount, but the application was not pressed and it was filed by the Court. There seems, therefore, to be no substance in this contention.

(3.) Darkhast No. 530 of 1936 was struck off because the decree-holder failed to produce certain extracts of Record of Rights as ordered by the Court. The Court may, under Order XXI, Rule 14, require the production of such documents "where an application is made for the attachment of any land which is registered in the office of the Collector." Here no such application was made, the property being already secured for payment of the debt, and therefore, it cannot be said that the requirement of Order XXI, Rule 14 was not complied with. Sub-rules (1) and (2) of XXI, Rule 17, are as follows: (1) On receiving an application for the execution of a decree as provided by Rule 11, Sub-rule (2), the Court shall ascertain whether such of the requirements of Rules 11 to 14 as may be applicable to the case have been complied with, and, if they have not been complied with, the Court may reject the application, or may allow the defect to be remedied then and there or within a time to be fixed by it. (2) Where an application is amended under the provision of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented.