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TMI Blog1972 (2) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d to as debtors' Relief Act) for adjustment of his debts. To that petition he made all his creditors including Malek Alladatkhanji and the heirs of the deceased Hanifa Begum, wife of Malek Alladatkhanji parties. He sought adjustment of not only debts incurred by him but also the debts due from his family, which had been borrowed by his ancestors jointly with the ancestors of respondent No. 2. Khodaji having died during the pendency of the proceedings, respondent No. 1, his son was impleaded as his legal representative. At about the same time respondent No. 2 Gulabsing Harising also made an application for the adjustment of debts incurred by him as well as the debts jointly borrowed by his ancestors along with the ancestors of Khodaji. Malek Alladakhanji also applied for adjustment of debts due to him as well as to his deceased wife from Kohadaji and respondent No. 2. All these applications were clubbed together and tried together. 5. The Civil Judge, Senior Divisions Surendranagar who tried the aforementioned three applications as a debt adjustment Board (which will be hereinafter called 'Board'), made his award on January 3, 1959. Therein he held that no amount was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malu died during the pendency of this appeal. His legal representatives have not been brought on record. Hence the appeal in respect of that item of property has abated. 8. Item No. 1 in the Darkhast is a field known as Boriu . Its extent is 12 Bighas. Its possession is claimed from Jesang Khoda. Item No. 2 is another field known as Boriu which is also known as unchannu Boriyun . Its extent is 10 Bighas. Its possession is also claimed from Jesang Khoda. In the first award passed by the Board, the Board directed that both these fields should be delivered back to the debtOrs. The fresh award passed after remand also directed creditors Nos. 1 and 2 to restore possession of these fields to the debtOrs. The appellate order confirmed that decision. Hence the appeal in respect of these fields is unsustainable. The same is accordingly dismissed. 9. We shall next take up item No. 8 which relates to the field known as Dosima's katki . Its extent is 5 Bighas. The original award directed the restoration of that property to the debtOrs. After remand the fresh award again directed creditors Nos. 1 and 2 to restore possession of that field to the debtors (respondents 1 and 2). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not go into that question. But unfortunately at the end of the judgment of the appellate court it is mentioned : For the reasons aforesaid, S.A.D.R. Appeal Nos. 5 of 1963 and and 6 of 1963 are allowed and S.A.D.R. Appeal No. 8 of 1963 is dismissed and the order of the learned Board Court in so far as it relates to the recovery of the dues by the editors from the two debtors is concerned, is set aside and it is held that the mortgage debts due to the creditors are wiped out and therefore the creditors should restore possession of the mortgage properties in their possession to the debtors without recovering any amount. 14. But this order must be read in the context in which it was made. It can only refer to the mortgaged properties which were the subject matter of the appeal. 15. We shall now come to the lands mentioned as items 3, 4, 5 and 6 in the Darkhast. Item 3 is a field known as Bhandeiu . Its extent is 20 Bighas. The possession of that field is claimed from Bhavan Vaja, the 1st appellant. 5th item is a field known as Bhanderiu . Its possession is also claimed from Bhavan Vaja. Its extent is 22 Bighas. 5th item is a field known as Jaliu , 16 Bighas in extent. Its p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution court and if that court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it. Evidently the execution court in this case thought that its jurisdiction began ended with merely looking at the decree as it was finally drafted. Despite the fact that the pleadings as well as the earlier judgments rendered by the Board as well as by the appellate court had been placed before it, the execution court does not appear to have considered those documents. If one reads the order of that court, it is clear that it failed to construe the decree though it purported to have construed the decree. In its order there is no reference to the documents to which we have made reference earlier. It appears to have been unduly influenced by the words of the decree under execution. The appellate court fell into the same error. When the matter was taken up in revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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