SHEOKISAN Vs. NARAYAN WASUDEO JOSHI

JUDGEMENT

(1.) THE present plaintiff appellant, Shoekisan, filed a suit for arrears of revenue against the defendant respondent Narayan Wasudeo Joshi in the Court of the Second Musiff, Bhandara. The suit proceeded exparte and preliminary-decree for sale was passed on 26-10- 1923, the plaintiff having claimed a charge on certain milkiyat Sarkar land therein. Notice issued to the defendant-respondent before the decree was made final. He again remained absent and final decree was granted on 12-1-1924. Later on execution proceedings started and proclamation of sale etc. issued. The sale was held on 23-10-1924 and the decree-holder having obtained permission to bid, bought the property. Thereafter, the appellant as purchaser deposited a fourth of the purchase money. On 29-11-24 the executing Court set aside the sale on the ground that the purchaser had not deposited the three-fourths balance of the purchase money. Meanwhile, the judgment-debtor had deposited the amount of the claim and this was ordered to be paid to the decree-holder.

(2.) AN appeal followed against this order to the Court of the Additional District Judge, Bhandara. He held that the decree-holder was entitled to set-off the balance of the purchase money and he accordingly set aside the order of the first Court, dated 19-11-24, and remanded the application for execution to that Court for disposal according to law. On 8-5-25 accordingly the first Court passed order confirming the sale and a struck off the case as fully satisfied. This order was once more appealed against by the present judgment-debtor respondent, and the Additional District Judge, by his order dated 25-9-1925, once more remanded the case for further proceedings to the first Court. The reason for this remand was that in his opinion there seemed reason to suppose that the lands in the decree, which were specifically ordered to be sold, could not be so solds but he was unable to dispose of this matter entirely until the extent and nature of the judgment-debtor's interest in the milkiyat Sarkar land had not been made out, and he found it necessary to remand the case once more to the Court of first instance.

(3.) I am unaware, however, of any good ground for extending the principle in question to all other decrees passed by a Court. It is very obvious that any such interference by an executing Court with the decree as passed by an original Court must be strictly limited and in Shirekuli Timapa Hegda v. Mahablya [1886] 10 Bom. 435 Birdwood and Jardine, JJ., declined to interfere in a case in which it was alleged that a compromise decree contained a penal stipulation. The admission of a power to vary the requirements of a decree once it has been passed will inevitably introduce confusion and uncertainty, and if ordinary decrees not passed on a compromise, as the present one is, were to be challengable in execution proceedings on the ground that they contained an illegal condition, a state of little less than a judicial chaos would result.