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Krishnaji Narayan Vs. Neelappa Shidlingappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 548 and 549 of 1950
Judge
Reported inAIR1952Bom105; (1951)53BOMLR868
ActsDebt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 4 and 19(1)
AppellantKrishnaji Narayan
RespondentNeelappa Shidlingappa
Appellant AdvocateK.G. Datar, Adv.
Respondent AdvocateG.R. Madbhavi, Adv.
Excerpt:
.....debtors' relief act (bom. xxviii of 1947), sections 4, 19(1) - application for transfer of suit-suit pending in court at date when application under section 4 of act coud have been made-application for transfer made after expiry of date for making application under section 4-liability of suit to be transferred.; section 19(2) of the bombay agricultural debtors' belief act, 1947, does not provide that suits etc. are liable to be transferred provided an application for transfer is made by one or other party to the suit. an application for transfer is not a condition precedent to the transfer of the suit. an application may be made to draw the attention of the court that a particular suit is liable to be transferred, but a court may transfer a suit suo motu. it is the duty of the..........been laid down in somabhai v. narandas 61 bom. l.r. 461 to be applied in order to decide whether a suit is liable to be transferred under section 19 (1) or not, but mr. madbhavi has raised an interesting point, and that is that at the date when the application for transfer was made in january 1960 the last day for making an application under section 4 had expired, and therefore, although the suit might have been transferred if an application had been made in time between 16th december 1948 and 15th june 1949, inasmuch as the application was made subsequent to that date the suit is not liable to be transferred. in putting forward this contention, mr. madbhavi attaches importance to the date when the application for transfer is made. indeed, according to him that is the material date in.....
Judgment:
ORDER

[1] Two suits were filed in 1941 and 1948 in the Tikota Court which was in the Kurundwad State. After the merger of that State, the Bombay Agricultural Debtors' Relief Act was made applicable on 15th December 1948, to Tikota, and the last day for making an application under Section 4 was 15th June 1949. These suits were transferred to the Bijapur Court on 4th August 1949. An application was made to the learned Junior Civil Judge, Bijapur, for the transfer of these suits to the Court constituted under the B.A.D. It. Act in January 1950. The learned Judge held that these suits were not liable to be transferred under Section 19 (1), and these two revision applications are preferred against this decision.

[2] It is clear that those two suits were pending at the date when an application under Section 4 could have been made under the B.A.D.R. Act, and that is the test which has been laid down in Somabhai v. Narandas 61 Bom. L.R. 461 to be applied in order to decide whether a suit is liable to be transferred under Section 19 (1) or not, But Mr. Madbhavi has raised an interesting point, and that is that at the date when the application for transfer was made in January 1960 the last day for making an application under Section 4 had expired, and therefore, although the suit might have been transferred if an application had been made in time between 16th December 1948 and 15th June 1949, inasmuch as the application was made subsequent to that date the suit is not liable to be transferred. In putting forward this contention, Mr. Madbhavi attaches importance to the date when the application for transfer is made. Indeed, according to him that is the material date in order to decide whether a suit is liable to be transferred under Section 19 (1) or not. In my opinion, that contention is erroneous. Under Section 19 (1) an obligation is east upon the Court to transfer all units, appeals, applications, etc. which fall within the ambit of that section. Section 19 (1) does not provide that suits etc , are liable to be transferred provided an application for transfer is made by one or other party to the suit. An application for transfer is not a condition precedent to the transfer of the suit. An application may be made to draw the attention of the Court that a particular suit is liable to be transferred, but a Court may transfer a suit suo motu. Indeed, it would be the duty of the Court to transfer the suit if it satisfies the conditions laid down in Section 19 (1), and therefore the material point of time to be considered is not when the application for transfer was made, but when the suits were pending in the Court, and as laid down in Somabhai Shanabai v. Narandas, if these two suits were pending in the Tikota Court at the time when an application under Section 4 could have been made, then these suits are liable to be transferred. It is entirely immaterial as to when an application for transfer is made. I took the same view of the law in Yogappa Andaneppa v.Laxman Vankatesh, C.R.A No. 681 of 1950 (Bom.), but the matter was not fully argued then and therefore I have thought it proper, in fairness to Mr. Madbhavi, to reproduce in this judgment the arguments advanced by him.

[3] The result is that both those civil revision applications must succeed. Rules absolute with costs. Costs will be allowed only of one advocate in both these rules. The petitioner will be allowed other costs.

[4] Rules made absolute.


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