BIRDICHAND DHONDIRAM MARWADI Vs. BADESAHEB BAHAMIYA

JUDGEMENT

(1.) The question in this appeal is whether the present darkhast filed by the plaintiff-decree- holder-appellant is barred by limitation as both the lower Courts have held. The decree in question was obtained by the appellant against the widow and children of one Baba Miya deceased and was passed against them, with the limitation that the decretal amount should only be recoverable from the estate of the deceased Baba Miya in the hands of the defendants. On June 4, 1923, the appellant brought a darkhast No. 454 of 1928. which was rejected on the ground that an inventory under Order 21, R. 12, was necessary and was not annexed to the darkhast application. Both the lower Courts have held that the darkhast of 1923 was, in the absence of such an inventory, not in accordance with law within the meaning of Art. 182 of the First Schedule of the Limitation Act, and that the present darkhast was, therefore, barred by limitation.

(2.) The decree in question, however, fell under Section 52 of the Civil P. C., and, in our opinion, the property, if any, which could be attached, was property in the hands of the judgment-debtors, from the estate of the deceased. The judgment-debtor in the present case was not the deceased but the widow and children. Therefore, the property, whatever it was, which was sought to be attached, could not be said to be the property belonging to, but not in the possession of, the judgment-debtor, within the. meaning of Order 21, R. 12, Civil P.C.

(3.) It was pointed out by us in the argument that the darkhast of 1923 has not been placed before us. Neither side apparently put it in. Beyond the single fact that an inventory under Order 21, R. 12, Civil P.C, was not annexed, which the Subordinate Judge thought necessary, we know nothing about that darkhast. We are of opinion, therefore, that Order 21, Rule 12, had no application to the darkhast of 1923, and, if so, there is nothing to show that it was not a step-in-aid of execution within the meaning of Art. 182, First Schedule. We cannot agree with the reasoning of the lower appellate Court in this respect. We agree with the observations of Batchelor, J., in Bando Krishna V/s. Narasimha [1912] 37 Bom. 42. It is not every infructuous darkjiast which fails as step-in-aid of execution for the purposes of limitation. Nor is any and every defect necessarily fatal. In the present case it is not necessary for us to go further into the matter. Order 21, Rule 12, had no application and no inventory was necessary.