Skip to content


Yadneshawar Madhav Bhawe Vs. Mango Raoji Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 367 of 1968
Judge
Reported inAIR1969Bom74; (1968)70BOMLR438; ILR1968Bom743
ActsBombay Agricultural Debtors Relief Act, 1947 - Sections 38, 38(3), 43 and 46; Code of Civil Procedure (CPC), 1908 - Sections 2(2), 36 and 47
AppellantYadneshawar Madhav Bhawe
RespondentMango Raoji Patil
Appellant AdvocateN.D. Dange, Adv.
Respondent AdvocateM.R. Kotwal, Adv. for ;U.R. Lalit, Adv.
Excerpt:
.....sections 2(14), 36, 47, 2(2), 2(3), 2(10); order xxi--order dismissing application for executing award passed under act--whether such order appealable.;an order dismissing an application for executing an award passed under the bombay agricultural debtors relief act, 1947, is appealable.;jankibai abaji v. bhikaji raghunath (1957) 59 bom. l.r. 610, disapproved.;chaturbhai mathubhai v. ramanlal (1957) 59 bom. l.r. 689, referred to. - - after the mortgagees were paid off, the dues of unsecured creditors were to be satisfied by rateable distribution of subsequent instalments. 375 was payable by the opponent on 15th december 1953. the opponent having failed to pay any of the instalments, the petitioner filed on 8th january 1964 a darkhast for executing the award. the trial court dismissed..........which we have to decide is , whether an order dismissing an --- application for executing an award passed under the b. a. d. r. act is appealable and whether the view to the contrary expressed in jankibai abaji's case : (1957)59bomlr610 is correct. 3. sub- section (3) of section 38 of the b. a. d. r. act provides for the execution of awards passed under the act. clause (i) of that sub-section says that if a debtor makes default in payment of any instalment due under an award to any creditor such creditor may apply in the prescribed form to the court for execution of the award. clause (ii) lays down that if the court is satisfied that the debtor has made default in the payment of the instalment, the court shall transfer the award for execution to the collector and there upon the.....
Judgment:

Tarkunde, J.

1. This Revision Application arises from a Darkhast filed by the petitioner for executing an award passed under the Bombay Agricultural Debtors Relief Act. The opponent was the agriculturist debtor in respect of whose debts the award was passed. It was provided in the award that the opponent should deposit in court annual instalments of Rs. 375 each. The amount paid by instalments was to be first utilised in discharging the dues of two mortgages. After the mortgagees were paid off, the dues of unsecured creditors were to be satisfied by rateable distribution of subsequent instalments. the petitioner was one of the unsecured creditors and was entitled to recover an amount of Rs. 1200 with interest at 4 per cent per annum. The first instalment of Rs. 375 was payable by the opponent on 15th December 1953. The opponent having failed to pay any of the instalments, the petitioner filed on 8th January 1964 a Darkhast for executing the award. The trial Court dismissed the Darkhast on the ground that the dues of the mortgagees has not been paid off by the opponent, that the petitioner was not entitled to recover his debt till the dues of the mortgagees were satisfied and that the Darkhast was maintainable and was wrongly dismissed by the trial Court. The learned Assistant Judge, however, dismissed the petitioner's appeal because he held, following the decision by Mr. Justice Gokhale in Jankibai Abaji v. Bhikaji Raghunath : (1957)59BOMLR610 that no appeal was maintainable from the order of the trial Court. The petitioner has filed this revision application from the decision of the learned Assistant Judge.

2. Initially this Revision Application came for hearing before Mr. Justice Patel. The learned Judge referred it to a Division Bench because he found it to be a Division Bench because he found it difficult to accept the view expressed in : (1957)59BOMLR610 . Thus the question which we have to decide is , whether an order dismissing an --- application for executing an award passed under the B. A. D. R. Act is appealable and whether the view to the contrary expressed in Jankibai Abaji's case : (1957)59BOMLR610 is correct.

3. Sub- section (3) of Section 38 of the B. A. D. R. Act provides for the execution of awards passed under the Act. Clause (i) of that sub-section says that if a debtor makes default in payment of any instalment due under an award to any creditor such creditor may apply in the prescribed form to the court for execution of the award. Clause (ii) lays down that if the court is satisfied that the debtor has made default in the payment of the instalment, the court shall transfer the award for execution to the Collector and there upon the Collector shall recover the amount of the instalment from the debtor as arrears of land revenue. Clause (iii) provides that if the court has passed any property under clause (v)of sub-section (2)of Section 32, such order shall be executed by the Court 'as if it were a decree passed by it.'

4. Section 43 of the Act lays down that 'notwithstanding anything contained in any other law'

an appeal shall lie from certain orders passed under the Act and also from awards made under the Act. Section 43 does not provide for an appeal from an order of the executing Court passed under sub-section (3) of Section 38.

5. It is, however, established by several decisions of this Court that Section 43 of the B. A. D. R. Act is not exhaustive of the orders under the Act from which appeals can be filed. The object of Section 43 was to provide for appeals from orders which were apparently not appealable under the Civil Procedure Code and which the Legislature intended to e appealable. Section 46 of the Act lays down that, save as otherwise expressly provided by the Act, the provisions of the Code of Civil Procedure shall apply to all proceedings for the adjustment is not covered by Section 43 is appealable if an appeal from that order is provided by the Civil Procedure Code.

6. In Jankibai Abaji's case : (1957)59BOMLR610 decided by Mr. Justice Gokhale, the facts were that a creditor filed an application for executing an award made under the B. A. D. R. Act and the debtor pleaded before the executing court that the award was satisfaction was not proved. The debtor appealed from this decision to the District Court, but the District Court dismissed the appeal as being incompetent. The decision of the District Court was upheld by Mr. Justice Gokhale.

7. In the course of his judgment Mr. Justice Gokhale accepted the position that an order passed under the B. A. D. R. Act, which is not covered by Section 43 of the Act, is appealable if an appeal from such order is provided by the Code of Civil Procedure. It was argued before the learned Judge that the order of the executing court rejecting the plea of satisfaction raised by the debtor was an order under Section 47 of the Civil Procedure Code and was, therefore, appealable as a 'decree' as defined by Section 2(2) of the Code. This contention was rejected, it is necessary to examine the terms of sub-section (1) of Section 47 of the Civil Procedure Code, which runs thus:

All questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the court executing the decree and not by a separate suit'.

The learned Judge held that Section 47 of the Civil Procedure Code has not application to the determination of any question in the execution of an award under the B. A. D. R. Act, because a proceeding for the adjustment of debts under the B. A. D. R. Act is not a suit and an award passed in such proceeding is not a decree. The learned Judge observed in this connection:

'Now , it cannot be held in the first instance that the parties in these Darkhast were parties to any suit. Nor can the awards passed against the petitioner be regarded as decrees. Prima facie, therefore, S. 47 of the Civil Procedure Code would not apply'.

The learned Judge further observed that the provisions contained in Section 38 of the B. A. D. R. Act themselves showed that an award passed under the Act was not executable under the Act was not executable under the provisions of the Code of Civil Procedure.

8. It appears to us, with great respect, that the question whether an order passed during the execution of an award is or is not appealable, does not depend on whether the award amounts to a 'decree' as defined in the Civil Procedure Code. If the award is not a decree, as held by the learned Judge, it is an 'order' as defined in Section 2(14) of the Civil Procedure Code. Under Section 2(14) an 'order' means ' the formal expression of any decision of a Civil Court which is not a decree'. An award passed by the court under the B. A. D. R. Act amounts to a formal expression of a decision of a Civil Court and, if it is not a decree, it is an order under the above definition. Now, Part II of the Civil Procedure Code relating to the execution, and the first section in that Part is Section 36, which lays down: 'The provisions of this Code relating to the execution of decrees shall, so far as they are applicable, be deemed to apply to the execution of orders'. Section 47 falls in Part II of the Civil Procedure Code and, since it related to execution of decrees, is deemed to apply to the execution of orders so far as its provisions are applicable thereto. Under Section 47 of the Civil Procedure Code, all questions arising between the parties to the suit in which the decree was passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, are to be determined by the Court executing the decree. In its application to execution of orders, Section 47 must be deemed to provide that all questions arising between the parties to a proceeding in which an order was passed or their representatives, and relating to the execution, discharge or satisfaction of the order, shall be determined by the court executing the order, An order of the Court executing an award holding that the satisfaction alleged by the debtor was not proved (as in Jankibai Abaji's case : (1957)59BOMLR610 or that the application for execution is not maintainable (as in the present case ) is, therefore, an order under Section 47 of the Civil Procedure Code. It has been laid down in the definition of 'decree' in Section 2(2) of the Civil procedure Code that the word 'decree' shall be 'deemed of include .........the determination of any question within Section 47'. The order of the Court executing awards referred to above are, therefore, decrees and are appealable as such..

9. That no distinction has been made in the Civil Procedure Code in the execution of decrees and orders is clear from a number of other provisions. In Section 2(3) of the Civil Procedure Code a 'decree-holder' has been defined as 'any person in whose favour a decree has been passed or an order capable of execution has been made'. Similarly, in Section 2(10) a 'judgment-debtor' has been defined as 'any person against whom a decree has been passed or an order capable of execution has been made'. Then the whole of order XXI of the Civil Procedure Code bears the heading 'Execution of Decrees and Orders'. That is why the rules in Order XXI, although they refer in terms to execution of decrees, apply to execution of orders as well.

10. We have noticed above that Mr. Justice Gokhale said in his judgment in Jankibai Abaji's case : (1957)59BOMLR610 that the provisions contained in Section 38 of the B. A. D. R. Act show that an award is not executable under the provisions of the Code of Civil Procedure. Mr. Kowtow, who appeared before us on behalf of the opponent, also urged that Section 38 precludes the application of the provisions of the Civil Procedure Code to the execution of awards. Now, Section 38 precludes the application of the provisions of the Civil Procedure Code to the execution of awards. Now, Section 46 of the B. A D. R. Act lays down that 'save as otherwise expressly provided in this Act', the provisions of the Code of Civil Procedure shall apply to all proceedings for the adjustment of debts. We do not be express provision in Section 38 which prevents the application of the Civil Procedure Code to the execution of awards, except the provision which says that, after an award is transferred to the Collector for execution, the Collector shall recover the amount of the instalment from the debtor as arrears of land revenue. It must follow that the relevant provisions of the Civil Procedure Code apply to the execution of awards except the extent specified above.

11. The observation of Mr. Justice Gokhale in the above case that an award is not executable under the provisions of the Code of Civil Procedure runs counter to the decision by Mr. Justice Bavdekar in Chaturbhai Mathubhai v. Ramanlal : (1957)59BOMLR689 . There an agriculturist debtor had raised a contention during the execution of an award that he had paid the amount of instalments to his creditor. The creditor objected that the alleged payment by the debtor could not be taken notice of by the court in view of the provisions of Order XXI Rule 2 of the Civil Procedure Code. This Objection was accepted. Mr. Justice Bavdekar held that Order XXI Rule 2(3) of the Civil Procedure Code applies to payments alleged to have been made towards awards passed under the B. A. D. R. Act.

12. We are accordingly of the view that in the case before us the learned Assistant Judge was wrong in holding that the appeal filed by the petitioner was not maintainable.

13. We agree with the finding of the learned Assistant Judge that the trial court was in error in dismissing the petitioner's Darkhast as being untenable. The mere fact that the mortgagees have not yet recovered the amounts which were due to them cannot disentitle the petitioner from applying for executing the award. After the award is transferred to the Collector for execution under clause (ii) of Section 38(3) of the B. A. D. R. Act, and after the amount of the instalments in arrears is recovered, the court will decide to which of the creditors the amount if payable and in what proportion.

14. In the result, the revision application is allowed, the orders passed by the trial Court and by the learned Assistant Judge are set aside, the petitioner's Darkhast in the trial court, is restored and the trial Court is directed to dispose it of in accordance with law. The opponent will pay the petitioner's costs in this Court and in the lower appellate Court.

15. Appeal allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //