Virappa Govindappa Konraddi vs Basappa Virbhadrappa Kulkarni

Norman Macleod, Kt., C.J.—The defendants applied for the execution of the consent decree in suit No. 380 of 1911), dated November 22, 1920, whereby it was ordered that the plaintiffs should pay to defendants Nos. 1-5 Rs, 13,000, by instalments. If the plaintiff''s could not pay the amount, the defendants were entitled to recover the amount by sale of the property in suit which was charged with payment of the decree. The property was sold and the sale proceeds were not sufficient to satisfy the decree. Thereupon the defendants applied for the attachment of certain other property belonging to the plaintiffs. On October 13,1923, an order was made and it was transferred to the Collector for further execution u/s 68, Civil Procedure Code. The plaintiffs might have appealed against that order. But instead of doing that, they made a miscellaneous application to the Judge praying that the defendants'' darkhast should be dismissed. We do not know how it was competent to the Judge to entertain that application. It is suggested now that he could deal with it u/s 151 of the Code. But it certainly is not intended that where a party does not take advantage of the right of appeal granted him by the Code that he should be allowed to come to the Court and ask the Court to exercise its powers u/s 151.

We think, therefore, that the Judge was not competent to dismiss the darkhast on this application. The appeal must be allowed. The darkhnst must proceed. The appellant is entitled to his costs throughout.