DESAIAPPA KHALILAPPA DESAI Vs. DUNDAPPA MALKAPPA

JUDGEMENT

(1.) IN this case a decree was passed on the 18th February 1899 for Rs. 376 and costs in favour of the plaintiff. The first Darkhast presented to the Court was dismissed for non- production of a succession certificate on the 20th March 1907. Thereafter a Darkhast was filed on the 31st March 1910 which was disposed of on the 8th September 1910, and then another Darkhast was presented on the 12th September 1910. The defendant then appeared and contended that the Darkhast of the 31st March 1910 was barred. Apparently the Court decided that the Darkhast of the 12th September 1910 was in time, and directed that the money due should be paid by instalments, the first instalment to be paid on the 15th April 1912. On the 26th March 1913 Rs. 220 were paid to plaintiff. The present Darkhast was filed on the 19th November 1915 to recover the balance due under the decree of Rs. 270-3-6.

(2.) THE first Court directed execution to proceed. THE lower appellate Court reversed the order of the lower Court, and dismissed the Darkhast with costs, on the ground, as I take it, that the decree was dead on the 31st March 1910, and even although the further Darkhast was admitted thereafter, that would not have the effect of reviving the decree, so that the Court was entitled to consider the question in the present Darkhast, and come to the conclusion that no Darkhast ought to have been admitted after the 31st March 1910. But we have been referred by the appellant s pleader to the case of Mungul Pershad Bichit v. Grija Kant Lahiri Chowdhry (1881) L.R. 8 I.A. 123, which was a case very similar to the present case. THEre a decree was passed in 1851, and thereafter there were many applications and proceedings to enforce or keep in force the decree. An application was admitted on the 5th September 1874, although the previous application was dated the 7th August 1871, and, therefore, the last application was admittedly more than three years after the previous one. It was held by the lower Court that a decree once dead no proceedings by means of an application out of time could revive it, but their Lordships of the Privy Council considered that that was not a correct argument, and held that the order, although it may have been erroneously made, was nevertheless valid, unless reversed upon appeal. THE result is that we must consider the order made on the Darkhast of the 12th September 1910 as valid, as it was not reversed on appeal, and therefore, the present Darkhast is within time as the last instalment was paid by the defendant on the 26th March 1913. We, therefore, reverse the decree of the lower appellate Court and restore that of the trial Court, and direct that execution do proceed as prayed for. THE respondent must pay the costs of the Darkhast throughout.