DEORAO SURYABHANJI Vs. RAMCHANDRA AMRUTLAL RATHI

JUDGEMENT

(1.) THIS is a miscellaneous second appeal against the order of Mr. B.S. Divekar, Additional District Judge, Ellichpur, in Miscellanceous civil Appeal No. 4 of 1941, decided On 24-10-1941.

(2.) THE matter arises in execution proceedings of a decree dated 6-8-1928. According to Section 48, Civil P.C., the last date by which execution application could be made was 6-8-1940. Accordingly on 29-1-40 the decree-holder applied for execution. At first the application was for transfer of the decree to Akola so that he could proceed against the immovable property, but by an application dated 10-2-40 the decree-holder asked for execution against the movable property in the hands of the judgment-debtor. This property was attached and made over to a supratdar, but it could not be sold as the judgment-debtor prevented the supratdar from bringing the property into Court. Several attempts were made by the decree-holder to get at the movable property. Ultimately he compromised by accepting Rs. 100 from the supratdar in lieu of the property entrusted to him.

(3.) THE reasons given by the lower appellate Court were that the application dated 22-1-1941 involved a change in the mode of execution and the amendment could have been sought much earlier than 22-1-1941. The application for amendment was treated as a fresh application for execution and was held not to comply with Order 21, Rules 13 and 14, Civil P.C. The lower appellate Court, therefore, ordered the executing Court to recall the C form which, it appears, had been issued in the meantime.