Vinayak Vaman Paranjap vs Ananda Ramji

The facts material for the purposes of the points of law raised in this second appeal are shortly these. A decree was obtained on the 12th October 1894, by the assignor of the present appellant. On the 16th August 1897 the first darkhast for its execution was presented by the decree-holder himself. But as the process-fee was not paid, it was struck off. The Second darkhast was presented on the 16th August 1900 by the present appellant, but it was struck off on the 27th October 1900 on the ground, that the assignment, not having been produced, was not proved. On the 11th August 1903, a person calling himself the Mukhtyar of the assignee presented the third darkhast. But as neither the Mukhtyarnama nor the deed of assignment was produced it was struck off on the 9th October 1903. The fourth darkhast was presented by the same Mukhtyar on the 19th December 1905. A notice was issued to the judgment-debtor u/s 248 of the CPC then in force. He not having appeared, the darkhast was disposed of.

Both the Courts below have held that the present darkhast is barred by the law of limitation, because the second and the third darkhasts cannot be regarded as applications for execution made in accordance with law. We cannot agree with that view. These two darkhasts were disallowed, not because the persons who made those applications were not competent to make them, but merely because they did not produce evidence to satisfy the Court that there was an assignment and that there was a mukhtyarnama. But from the non-production of these it does not follow that, the assignment and the mukhtyarnama did not exist in fact then. It has been held in Abdul Majid v. Muhammad Faizullah 13 A. 89 under similar circumstances that the application of a party for the execution of a decree is a step-in-aid of it, though he fails to produce evidence to show that he had a right to execution. See also Abdul Kureem v. Chukhun 5 C.L.R. 253. Neither of the lower Courts has found in the present case whether the assignee was in fact an assignee, at the date of his application and was competent to make it, nor has it decided whether the Mukhtyar of the assignee was Mukhtyar in fact on the 11th August 1903 when the third darkhast was presented.

We, therefore, reverse the decree of the Court below and send back the darkhast to be dealt with according to law with reference to the observations herein. Costs to abide the result.