BALARAM GULABCHAND MARWADI Vs. JIGAN LAD PATIL

JUDGEMENT

(1.) The land in suit originally belonged to plaintiff No. 1's father Gulabehand who agreed to sell it to defendants Nos. 1 and 2 for Rs. 1,000 under an agreement, Exhibit 32, dated May 18, 1908, by which defendants Nos. 1 and 2 agreed to pay the purchase money in ten instalments of Rs. 100 each, and also agreed that if any two instalments remained unpaid the amount paid would not be refunded and defendants Nos. 1 and 2 would lose the right to have the lands sold to them, and that if the instalments were paid as agreed, plaintiff No. l's father was to execute a sale-deed in respect of the lands at the time of the last instalment. On the same day, a rent-note was passed in favour of plaintiff No. 1's father by defendants Nos. 1, 2 and 3 for two years reserving the rent of Rs. 99. The due dates of payment of rent coincided with the dates on which defendants Nos. 1 and 2 agreed to pay the instalments. The defendants failed to pay the rent, and the plaintiff No. 1's father applied to the Conciliator by application No. 26 of 1912 praying to recover the arrears of rent and to recover possession on the strength of the rent-note and on his title as owner. On February 6, 1912, the matter was compromised and the arrears of rent were ordered to be paid in three instalments with the condition that in case of default of any two instalments, plaintiff No. l's father was to recover possession of the land. The compromise was registered in the civil Court and a decree was passed on April 2, 1912. The decree was not executed by the plaintiffs. Defendants Nos. 1 and 2 paid Rs. 552. 13-0 after the date of the decree though they had already paid Rs. 134-8-0 before the date of the decree in accordance with the agreement, Exhibit 32.

(2.) The plaintiffs brought the present suit to recover possession of the land in both capacities as owners and landlords. The cause of action is said to have arisen on June 1, 1920, when the defendants did not deliver possession of the land when they were asked to do so as they did not act up to the conditions and terms of the agreement. The learned Subordinate Judge held that the suit was in time and ordered the plaintiffs to recover possession of the plaint land. On appeal, the learned District Judge held that the plaintiffs could not bring the present suit after allowing the execution of the previous decree to become time-barred.

(3.) Though the decree for possession obtained by the plaintiff No. l's father had become incapable of execution on account of the failure to apply for execution within limitation, the right eatablished by the decree remained. See Vasudeo Atmaram j08u V/s. Ebnath Balkrishna Thite (1910) I.L.R. 35 Bom. 79, s.c. 12 Bom. L.R. 956. But the right established by the decree could not be the basis of a subsequent suit, and the plaintiff who has neglected to execute the decree till it is time barred, cannot any the more on that account bring another suit for possession of the same property whether founded on the old decree in his favour or on the continued occupation of the same property by the defendant. See Sayad Nasrudin v. Vethhatesh Prabhu (1879) I.L.R. 5 Bom. 382 and Oman Sheikh V/s. Halakuri Sheik (1905) I.L.R. 33 Cal. 679. See also the remarks of Sadasiva Ayyar J. in Mayankutti V/s. Kunhammad (1917) I.L.R. 41 Mad. 641, 643.