NARMADABAI NARAYANSHET SHET Vs. HIDAYATALLI SAHEBALLI

JUDGEMENT

(1.) This appeal has been preferred by the surety against the order passed by the learned District Judge holding that the darkhast filed against the surety is in time and directing the Court of first instance to proceed with the said darkhast and to dispose of it on the merits in accordance with law.

(2.) In civil suit No. 475 of 1936 a decree was passed directing defendants Nos. 2 and 3 to pay the plaintiff Rs. 307-8-6 and proportionate costs. Pending the suit certain moveables belonging to defendant No. 3 were attached at the instance of the plaintiff. Thereupon the said defendant applied to raise the attachment (Miscellaneous Application No. 80 of 1936), and the application was allowed on the defendant furnishing security in that behalf. The present appellant stood surety for the said defendant to the extent of Rs. 400. As a result the moveables of defendant No. 3 which had been attached were returned to him. On the date of the hearing of the suit all the defendants remained absent and an ex parte decree was passed in favour of the plaintiff on November 18, 1938. Thereafter defendant No, 3, Mobarilal, filed Miscellaneous Application No. 157 of 1938 on December 29, 1938, for setting aside the ex parte decree and restoring the suit to file. But his application was dismissed on June 19, 1939. Moharilal preferred an appeal against the said order, No. 35 of 1939. But even the said appeal failed and was dismissed on August 23, 1939. The decree-holder has filed the present darkhast application No. 1171 of 1942 seeking to execute the decree against the surety. When notice was issued to the surety under Order XXI, Rule 22, he filed his written statement in which the main contention urged by him against the decree-holder's claim was that the darkhast is barred by limitation. He" has also contended that he had stood surety not for the purpose of the suit, but for the purpose of miscellaneous application No. 80 of 1936, and that the darkhast in which the ex parte decree is sought to be executed cannot be enforced against him. The learned Civil Judge, Junior Division, Yawal, rejected the surety's contention that he had stood surety in application No. 80 of 1936 and was not liable for the decree which was passed in the suit. He, however, held that the darkhast filed by the decree-holder was barred by limitation since it had been filed more than three years after the date of the decree. Accordingly, the decree-holder's darkhast was dismissed with costs. The appeal preferred by the decree-holder in the District Court of East Khandesh, however, succeeded, the learned District Judge having held that the present darkhast was in time. Accordingly, the learned District Judge has sent back the proceedings to the Court of first instance for disposal according to law. It is against this order that the surety has preferred the present second appeal.

(3.) On behalf of the respondent Mr. P.S. Joshi has raised a preliminary objection. He contends that the decree which is sought to be executed was passed in a suit in which the plaintiff had claimed to recover Rs. 300 due on a hand loan, and he argues that such a suit being of the nature cognizable by Courts of Small Causes, no second appeal would have been competent against the said decree since the amount or subject-matter of the original suit did not exceed Rs. 500. The expression "suit" used in Section 102 includes execution proceedings with the result that if the suit is of the nature described in Section 102, no second appeal would lie from an order made in execution of the decree passed in such a suit unless the value of the suit exceeds Rs. 500. The test in such cases is not the nature of the proceedings in execution, but the nature of the suit in which the decree sought to be executed was passed. That being so, the preliminary objection is, I think, well-founded and must be accepted. On behalf of the appellant Mr. Gokhale has, however, argued that in view of the importance of the question of law which he is raising in this appeal he should be permitted to convert his second appeal into a revisional application. It is clear that the question of law which arises for decision in these proceedings is of considerable importance, and I think it would not be improper to deal with the said point after allowing the appellant to convert his second appeal into a revisional application.