MADHAV PRABHAKAR OKA Vs. BALAJI GOVIND JOSHI

JUDGEMENT

(1.) These are three appeals in execution. When a few facts are clearly realised, the point that arises is short and simple. It appears that in 1910 a decree was passed on a mortgage in favour of one Vishnu Vishvanath Oka against Govind Vishvanath Joshi and this was an instalment decree. There were certain attempts made by Vishnu to execute the decree with which we are not now concerned. Vishnu died on April 8, 1913. Darkhast No. 54 of 1920 was filed by his natural brother Balvant Kashinath Oka. The table of the family relationship is given in the judgment of the lower Court. That darkhast was sent to the Collector for execution on August 20, 1920. The learned Subordinate Judge, however, held, on April 27, 1922, that it was not competent to the applicant Balvant to proceed with the execution as other persons interested with him in the decree as coparceners after the death of Vishnu were not joined. According to the view taken by the Court at the date of the presentation of the darkhast ho alone was entitled to apply for execution. While dismissing this darkhast, the Court observed as follows:- This will not stand in the way of the applicant and his brothers or nephews presenting a fresh darkhast after showing that they are entitled to present the same. At the date of the presentation of this darkhast the applicant was not a coparcener and was not the sole surviving coparcener and was not entitled to present the darkhast.

(2.) The proceedings were called back from the Collector on May 5, 1922. The present darkhast was filed on October 23, 1923, by Mahadev, the son of Prabhakar, as son of Prabhakar, as shown in the pedigree in the judgment of the lower Court, for the benefit of all the other coparceners. The other members of the Oka family, as shown in the genealogical table, were brought on the record in the darkhast on March 15, 1924. Thus unquestionably the darkhast was properly constituted on March 15, 1924. The learned Judge allowed execution in respect of two instalments which fell due within three years prior to this date, but disallowed the prayer for execution in respect of the earlier instalments claimed in this darkhast. The lower Court was of opinion that the time occupied before the Collector, after the Darkhast No. 54 of 1920 was sent up to him for execution, could not be excluded under para. 11, sub para. (3), of Schedule III of the Civil P. C..

(3.) Two appeals have been preferred by different members of the Oka family in the same interest, and the third appeal is preferred by one of the judgment-debtors contending that the family wag not joint, and that the previous Darkhast (No. 54 of 1920) was not properly filed by Balvant.