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Gopal Parsharam Namjoshi vs Damodar Janardan Bhagwat on 6 October, 1942 cites

Kommachi Kather vs Pakker And Ors. on 20 November, 1896

With all respect, it seems to me that this argument is hardly justified in view of the provisions relating to secured creditors to be found in the three provisos to Section 73. Besides, apart from the fact that the language of the old Section 295 under which this case was decided is not the same as that of the present Section 73, it is to be noted that the decree with which the case was concerned contained a distinct order to the mortgagor personally to pay the amount of the mortgage debt. Kommachi Kather v. Pakker (1896) I.L.R. 20 Mad.
Madras High Court Cites 0 - Cited by 10 - Full Document

Bando Krishna Kunbargi vs Narasimha Konher Deshpande And Ors. on 16 July, 1912

11. Coming now to the authorities, we have' first two cases of this Court, Nathubhai v. Pranjivan and Bando Krishna v. Narasimha, In Nathubhai v. Pranjivan there had been a decree on June 30, 1900, ordering partition of immoveable property and making the execution of the decree conditional on the payment 6th the proper court-fees. On June 29, 1903, an application for the execution of the decree was made, but it was dismissed as it was not accompanied by the payment of court-fees. A second application to execute the decree was presented on June 27, 1906, accompanied by payment. The lower Courts dismissed it on the ground that it was time-barred inasmuch as the first application made in 1903 had not been one in accordance with law as required by Article 179 of Schedule II to the Indian Limitation Act. In support of that order it was argued that the application of 1903 had asked the Court to do what it was not competent to do, i.e. to make the partition without payment of court-fees. It was held that as payment was prescribed under the decree as a condition of partition, but not as a condition of the making of the application for partition, the application asked for something within the decree and was, therefore, in accordance with law, for it was competent to the Court to order the execution to begin on the court-fees being paid within a certain period.
Bombay High Court Cites 3 - Cited by 8 - Full Document

Gurappa Gurushiddappa Neeli vs Amarangji Vanichand on 6 September, 1940

16. The decree in the present case, however, is not a consent decree, in arranging which the creditor could be said to have been the master of the situation, so that he could not have abandoned the general right which he would have, under a money decree, of proceeding against any property of the debtor. The charge was created under the award on which the decree was based, and it seems to me unlikely that the arbitrators not only created such a charge for the benefit of the creditor but also left him the option of proceeding against any property of the debtors even though not covered by the charge. It appears to me that the part of the decree which we are dealing with is intended to operate in the manner of a final decree for sale under Order XXXIV, Rule 5, and that the part of the decree providing for the contingency of the sale-proceeds being insufficient to discharge the judgment-debtor's liability (corresponding to a decree passed under Order XXXIV, Rule 6) cannot be said to have yet become operative. It, therefore, seems to me that though the consent decrees in Janardan, v. Krishnaji and Gurappa Gurushiddappa v. Amarangji Vanichand might have been decrees for the payment of money, the ground on which they might be so construed is not available to the present decree-holder. For the purpose of construing the present decree with reference to the question whether it is a decree for payment of money within the meaning of Section 73 I think that it should be regarded as on the same footing as a decree for sale for enforcement of a mortgage or charge, and it is on this footing that the' decree has been dealt with in the Courts below.
Bombay High Court Cites 7 - Cited by 12 - Full Document

Nathubhai Kusandas vs Pranjivan Lalchand on 22 November, 1909

11. Coming now to the authorities, we have' first two cases of this Court, Nathubhai v. Pranjivan and Bando Krishna v. Narasimha, In Nathubhai v. Pranjivan there had been a decree on June 30, 1900, ordering partition of immoveable property and making the execution of the decree conditional on the payment 6th the proper court-fees. On June 29, 1903, an application for the execution of the decree was made, but it was dismissed as it was not accompanied by the payment of court-fees. A second application to execute the decree was presented on June 27, 1906, accompanied by payment. The lower Courts dismissed it on the ground that it was time-barred inasmuch as the first application made in 1903 had not been one in accordance with law as required by Article 179 of Schedule II to the Indian Limitation Act. In support of that order it was argued that the application of 1903 had asked the Court to do what it was not competent to do, i.e. to make the partition without payment of court-fees. It was held that as payment was prescribed under the decree as a condition of partition, but not as a condition of the making of the application for partition, the application asked for something within the decree and was, therefore, in accordance with law, for it was competent to the Court to order the execution to begin on the court-fees being paid within a certain period.
Bombay High Court Cites 3 - Cited by 4 - Full Document

Janardan Govind Karguppikar vs Narayan Krishnaji Karguppikar on 18 January, 1918

16. The decree in the present case, however, is not a consent decree, in arranging which the creditor could be said to have been the master of the situation, so that he could not have abandoned the general right which he would have, under a money decree, of proceeding against any property of the debtor. The charge was created under the award on which the decree was based, and it seems to me unlikely that the arbitrators not only created such a charge for the benefit of the creditor but also left him the option of proceeding against any property of the debtors even though not covered by the charge. It appears to me that the part of the decree which we are dealing with is intended to operate in the manner of a final decree for sale under Order XXXIV, Rule 5, and that the part of the decree providing for the contingency of the sale-proceeds being insufficient to discharge the judgment-debtor's liability (corresponding to a decree passed under Order XXXIV, Rule 6) cannot be said to have yet become operative. It, therefore, seems to me that though the consent decrees in Janardan, v. Krishnaji and Gurappa Gurushiddappa v. Amarangji Vanichand might have been decrees for the payment of money, the ground on which they might be so construed is not available to the present decree-holder. For the purpose of construing the present decree with reference to the question whether it is a decree for payment of money within the meaning of Section 73 I think that it should be regarded as on the same footing as a decree for sale for enforcement of a mortgage or charge, and it is on this footing that the' decree has been dealt with in the Courts below.
Bombay High Court Cites 7 - Cited by 12 - Full Document
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