Baliram Narayan Naik And Others Decree-Holders v. Sakharam Ramji Gujar And Another Judgment-Debtors

1. The point in this appeal is simple. The appellants' shop by name “Baliram Narayan Naik” obtained a money decree against the respondents for Rupees 4995 and costs on 24th July, 1924. During the pendency of that suit some property of the respondents had been attached before judgment, and the attachment was ordered to continue by the decree. The appellants presented a darkhast, No. 830 of 1924, to execute the decree for recovering the decretal amount by the sale of the attached property. The respondents tendered Rs. 1000 and were allowed to satisfy the decree by annual instalments beginning from 31st January 1927. The attachment of the respondents' property was allowed to continue with their consent, and the darkhast was disposed of on 23rd December, 1925. It was ordered that in case of two defaults the entire balance of the decretal amount then in time should be recovered at once. Thereafter the appellant presented darkhast No. 230 of 1931 to recover the balance of the decretal amount by the sale of the property attached. That darkhast was presented on 31st January 1931, and was duly registered under O. 21, R. 17, cl. (4) of the CPC; but certain defects, including the absence of the list or the description of the attached property sought to be sold, were noticed, and the appellants were called upon to give an explanation of those defects. The appellants took time; but as they failed to put in any explanation, the darkhast was disposed of on 15th June, 1931. The appellants then presented this darkhast (No. 778 of 1934) on 15th June, 1934, to recover the balance of the decretal amount by sale of the attached property. The respondents contended that as the appellants' darkhast No. 230 of 1931 was not in accordance with law, the present darkhast was time-barred. This contention was upheld by the lower Court, and the darkhast was dismissed.

2. The only issue in this appeal is whether darkhast No. 230 of 1931 was in accordance with law so as to give a fresh starting point of limitation under the provisions of Article 182, cl. (5), Sch. 1 to the Limitation Act, 1908. The learned Subordinate Judge relied upon the ruling in 32 Bom LR 13681 for holding that the appellants' failure to give a description of the property sought to be sold was such a defect as rendered the darkhast application “not in accordance with law.” The facts in 32 Bom LR 1368 were different. In that case the property sought to be sold in execution of the decree had not been previously attached, and the application for execution omitted to mention what property was to be attached and sold. That omission obviously contravened O. 21, R. 13 of the CPC, and was therefore held to be not an application in accordance with law within the meaning of Article 182 of the Limitation Act. O. 21, R. 11, sub-r. (2) of the CPC, prescribes what should be contained in an application for execution, and cl. (j) of that sub-rule says that the application should state the mode in which the assistance of the Court is required whether (i) by the delivery of any property specifically decreed: (ii) by the attachment and sale, or by sale without attachment, of any property: (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; or (v) otherwise, as the nature of the relief granted may require. Sub-r. (2)(ii) obviously contemplates that the applicant seeking the execution of the decree may either ask the attachment and sale of the judgment-debtor's property or merely the sale of his property without attachment.

3. In the present case it was not necessary for the appellants to ask for the attachment of the judgment-debtor's property as it had already been attached and the attachment had been continued. O. 21, R. 13, which is relied upon in the ruling in 32 Bom LR 1368, provides that where an application is made for the attachment of any immovable property belonging to a judgment-debtor, it shall contain at the foot a description of such property and a specification of the judgment-debtor's share or interest in such property. It does not say that even where an application is made only for the sale of the immovable property of a judgment, debtor these details most be given. The reason is obvious. If the property is already attached or the attachment is unnecessary for any reason, then prima facie the Court is presumed to know what property is to be sold. As observed by Madgavkar, J. in 33 Bom LR 11302 “attachment merely results in the property remaining in custodia legis.” Hence a mere reference in the darkhast application that the property sought to be sold is attached already is a sufficient specification of that property, and if merely its sale is asked for in execution of the decree, the requirements of O. 21, R. 11, sub-r. (2), cl. (j), are sufficiently complied with.

4. Even in 32 Bom LR 1368 it was not held that the requirements of O. 21, R. 11, were not complied with; but the application was held to be not in accordance with law as the details of the description of the property and the specifications of the judgment-debtor's interest or share in the property were not given as required by O. 21, R. 13. But, as I have said, that Rule has no application to the facts of the present case, as the property had already been attached and the application was not for its attachment, but merely for its sale. To get over this difficulty, the learned advocate for the respondents contended that as soon as darkhast No. 880 of 1924 was disposed of, the attachment before judgment came to an end under O. 21, R. 57 of the CPC. It in held by a Full Bench of the Madras High Court in 47 Mad 4833 that O. 21, R. 57 is applicable even to attachments before judgment. Although that ruling was not followed in all its details by our High Court in 33 Bom LR 1130 yet it is held that when a sale of the property attached before judgment is asked for in a darkhast and the darkhast is disposed of, then the attachment is determined so far as regards such property is concerned.

5. Although that is a general rule applicable to the determination of an attachment before judgment after the disposal of the darkhast in which the property attached was sought to be sold, yet, in this particular case, when darkhast No. 830 of 1924 was disposed of, a specific order was made with the consent of the judgment-debtors that the attachment should continue. In that darkhast the judgment-debtors asked for permission to satisfy the decree by instalments, and the order passed by the Court shows that one of the considerations which induced it to grant the request of the judgment-debtors was that they consented to the continuation of the attachment before judgment. Having thus acquiesced in the continuation of the attachment before judgment, even after the disposal of the darkhast and having gained the advantage of being allowed to satisfy the decree by instalments, it is not now open to them to say that the attachment did not continue after the darkhast was disposed of. The attachment must therefore be held to have subsisted when darkhast No. 230 of 1931 was presented by the appellants. If so, the only question to be considered is whether the darkhast application was such that the executing Court could have proceeded with it. The test as laid down by the Calcutta High Court in 53 Cal 6644 and accepted in 59 Bom 15 is:

The expression ‘in accordance with law’ in Art. 182(5) should he taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. If the omissions were such as to make it impossible for the Court to issue execution upon it, it should be held that such an application was not in accordance with law.

Where an application for execution in substantial compliance with the law is preferred to the Court, such an application will be effectual to stay the progress of limitation whether the Court admits, or rejects, or returns the application, or allows such application to be amended.

6. In this case it does not appear that the defects were noticed as soon as the darkhast application was presented on 31st January 1931. In that case the procedure laid down in O. 21, R. 17 of the CPC, would have been adopted and the darkhast would not have been admitted and entered in the register of darkhasts until the defects noticed were remedied under sub-r. (4) of that rule. But the darkhast was admitted and registered as darkhast No. 230 of 1931, and thereafter the appellants were called upon to furnish the details of the attached property. It was not that no description of the property sought to be sold was given.

7. It may not be a description by survey numbers or boundaries, but the description of the property sought to be sold as “the attached property” was sufficient to determine specifically what that property was. Of course such determination may require further evidence, and if the order for attachment and the application on which that order was passed had been produced, the specific property sought to be sold would have been known. It is therefore clear that the mode in which the appellants sought the assistance of the Court for the recovery of the decretal dues was specifically stated as required by O. 21, R. 11, sub-r. (2), cl. (j) of the CPC, I therefore hold that the darkhast application in darkhast No. 230 of 1931 was in accordance with law and that as it starts a fresh period of limitation, the present darkhast is in time. I therefore set aside the order of the lower Court and remand the darkhast to be proceeded with in accordance with law. The respondents shall pay the appellants' costs in this Court and bear their own.

G.N/R.K

8. Order set aside.