PANDURANG JIVAJI versus RAMCHANDRA GANGADHAR ASHTEKAR (DEAD) BY LRS. & ORS.

Citation: [1982] 1 S.C.R. 1020 · Decided: 29-10-1981 · Supreme Court of India · Bench: A.D. KOSHAL · Disposal: Appeal(s) allowed

Judgment (excerpt)

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PANDURANG JIVAJ! 
v. 
RAMCHANDRA GANGADHAR ASHTEKAR (DEAD) 
BY LRS. & ORS. 
October 29, 1981 
[A.O. KOSHAL, V. BALAKRISHNA BRAD! AND 
R.B. MISRA, JJ.] 
Evidence-Seetion 114 of the Evidenc~ Act-Adverse inference against a 
party for his failure to appear in the court, when can arise. 
Respondent R.G. Ashtekar (since dead) flied a regular suit No. 215 of 1959 
for the recovery of his dues from Karnla Pictures, Kolhapur of which Bapusaheb 
Nara)·anrao Mohite (since dead) was the sole proprietor. On an application for 
an order of attachment before judgment under Order 38 Rule 5 of the C.P.C. a 
garnishee order W3s issued to the appellant Apte, the mortgagee of the properties. 
As per the directions of the court passed on his objection he exercised his right 
under section 176 of the Contract Act and sold 1he property attached to one 
Madhusudan Vasudeo Bavdekar, after due IiOtice to plaintiff Ashtekar and also 
after a public notice. 
The suit was decreed for Rs. 9,000 in favour of the plaintiff, who filed an 
application for execution and in the said proceedings Bavdekar, the purchaser, 
was impleaded so as to seek recovery of the properties in his hands by sale. 
The application was dismissed holding that the properly was pledged with Apte, 
who validly sold it to Bavdekar and that the attachment before judgment 
itself was· invalid. A ~.econd appeal before 1he High Court was rejected 
by the Chief Justice of Maharashtra but he granted leave to appeal under 
letters patent. The High Court reversed the concurrent findings of fact recor-
ded by courts below and in view of the fact that Apte sold the property for 
Rs. 46,000 as against Rs. 35,000 due to him, the executing court was directed to 
ask Apte to deposit the exce.ss amount of Rs. 11,000 in the executing court 
in the 1st instance and in case the entire amount of the decree holder was not 
satisfied then the executing court would call upon the heirs of Bavdekar to 
deposit in court the rema iog amount due to Decree holder or to produce the pro· 
perty attached within the time allowed by the Court in the event of this failure, 
1he execution court shall order execution against them. Hence the appeal by 
appellant after obtaining special leave. 
Allowing the appeal, the Court 
HELD: I :I. The question of drawing an adverse inferenc~ against a 
party for his failure to appear in court '"'ould arise only when there is no evidence 
on tbe rec..·ord. 
Absence of Apte and Bavdekar from the court would matter 
poly when there was no evidence on the record on the point in issue. 
[1026 G-tt, tQi5Aj 
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P,J. APTE V. R.G. ASHTEKAR (Misra, 1.) 
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1:2. 
On the findings of fact recorded by the two courts below, which are 
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final and which could not be normally set aside by the second Appellate Court, 
the' decree-holder cannot compel Apte or Bavdekar to produce the property as 
before the Court or the proceeds of the sale of the property as the amount due 
to Apte from judgment-debtor has not still been satisfied. 
[1026 G-H, 1027A] 
The statement of the judgment-debtor, the admission of the decree-holder 
in cross-examination also the averments in the agreement make the position 
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clear. 
[1026 A] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2069 of 
1970. 
Appeal by special leave from the judgment and order dated 
the 21st January, 1970 of the Bombay High Court in Letters Patent 
Appeal No. 60 of 1964. 
S. T. Desai and Mrs. J. Wad for the Appellant. 
A. G. Ratnaparkhi for Respondent No. I. 
Ex-parte for Respondents No. 2 & 3. 
The Judgment of the Court was delivered by 
MISRA, J. The present appeal by special leave arises out of an 
execution proceeding and is directed against the judgment of the 
High Court of Bombay dated 21st of January, 1970 in Letters Patent 
Appeal setting aside the order of the Single Judge in Second Appeal. 
The appeal came up for hearing on September 24, 1981. 
After the 
conclusion of the arguments of the counsel for the parties, we 
allowed the appeal with costs, set aside the judgment of the High 
Court and restored that of the District Judge for reasons to be re-
corded later, in the following terms: 
"This appeal is allowed with costs of this Court and 
the decree passed by the District Judge is restored. Reasons 
will follow later on." 
We now proceed to give the reasons. 
Respondent No. I, Ramachandra Gangadhar Ashtekar (since 
dead and represented by his legal representatives) filed a regul

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