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Gurbasappa Mahadevappa Vs. Neelkanthappa Shivappa - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberS.A. No. 309 of 1950
Judge
Reported inAIR1951Bom136; (1951)53BOMLR371; ILR1951Bom393
ActsDebt Law; Bombay Agricultural Debtors' Relief Act, 1947 - Sections 4, 15, 19 and 19(1); Code of Civil Procedure (CPC) , 1908 - Sections 9
AppellantGurbasappa Mahadevappa
RespondentNeelkanthappa Shivappa
Appellant AdvocateK.B. Sukthankar, Adv.
Respondent AdvocateB.M. Kalapate, Adv.
Excerpt:
.....relief act court, it will be open to the civil court to decide that question under section 15 of the act. -..........was extinguished or not. according to the learned judge it was only the ct. established under the bombay agricultural debtors' relief act that oould determine this issue. therefore he set aside the order of the executing ct. & directed that the appln. for execution should be transferred to the bombay agricultural debtors' relief act ct. under section 19(1) of the new act of 1947.2. now, with respect to the learned judge, he has not truly appreciated the position. under section 19, it is not that all pending proceedings have to be transferred. the test which has got to be applied is whether at the date when the proceedings were pending an appln. for adjustment of debts could have been made under section 4 of the act. under section 4, an appln. can only be made before 1-8-1947, if a board.....
Judgment:

Chagla, C.J.

1. A money decree was passed in favour of the applt. who is the D. H. on 28-2-1945. He applied for execution of his decree on 15-2-1947. The Bombay Agricultural Debtors' Relief Act, Act XXVIII (28) of 1939, was applied to Chikodi where the Ct. passed this decree on 1-5-1945, & under that Act the last date for making an appln. to the Board set up under that Act waa 80-10-1945. Before the executing Ct. the J. D. contended that as no appln. for the adjustment of his debt had been made by the creditor, the debt was extinguished & execution proceedings could not lie in respect of the decree. The executing Ct. framed two issues as to whether the J. D.'s debts exceeded Rs. 15,000 & whether he was an agriculturist within the meaning of the Act. On the first issue it held in favour of the D. H. With regard to the second issue it held in favour of the D. H holding that the J. D. was not an agriculturist within the meaning of the Act. From that decision an appeal was preferred to the learned Extra Assistant Judge at Belgaum, & the view that the learned Asst. Judge took was that the executing Ct. had no jurisdiction to determine the status of the J. D. or the other issue with regard to his debts, nor could the executing Ct. hold whether the debt was extinguished or not. According to the learned Judge it was only the Ct. established under the Bombay Agricultural Debtors' Relief Act that oould determine this issue. Therefore he set aside the order of the executing Ct. & directed that the appln. for execution should be transferred to the Bombay Agricultural Debtors' Relief Act Ct. under Section 19(1) of the new Act of 1947.

2. Now, with respect to the learned Judge, he has not truly appreciated the position. Under Section 19, it is not that all pending proceedings have to be transferred. The test which has got to be applied is whether at the date when the proceedings were pending an appln. for adjustment of debts could have been made under Section 4 of the Act. Under section 4, an appln. can only be made before 1-8-1947, if a Board was established after 1-2-1947. In this case the Board was established before 1-2-1947. Therefore, really, Section 4 has no application at all. The appln. for adjustment of debts had to be made under the old Act. Therefore this appln. for exeoution having been filed on 15-2-1947, could not be considered to be a pending proceeding within tbe meaning of Section 19 (1) & therefore it could not be transferred under that section. If that be so, what is the position? Section 15 is mandatory & it directs that all debts in respect of which no appln. had been made under Section 4 within the period specified in the section shall be extinguished & the question is whether it is for the executing Ct. to take notice of the provisions of thig section or whether it is for the special Ct. set up under the Bombay Agricultural Debtors' Relief Act to determine the question that arises under this section. It is difficult to understand how, if a pending proceeding cannot be transferred to the Bombay Agricultural Debtors' Relief Act Ct. under Section 19, the special Ct. can deal with any question that can arise under Section 15. As far as the J. D. & the D. H. are concerned, they haye put themselves, as it were, outside the pale of the special Ct. set up under the Bombay Agriculturat Debtors' Relief Act. But that does not mean that the civil Cts. of the land cannot decide issues that arise under the Bombay Agricultural Debtors' Relief Act. The whole policy underlying tbe Act is that special Obs. were to be set up for a limited period, that applns. were to be received for a limited period & the work of debt adjustment was also to be carried on for a limited period, but after the work of debt adjustment was completed & after the Cts. under the Act were wound up, questions are bound to arise for determination under the provisions of that Act. A decree may come up before the executing Ct. long after the whole machinery under the Bombay Agricultural Debtors' Relief Act has been wound up & the decree would have to be construed by the executing Ct. & therefore when a question arises under a decree as to whether the debt is extinguished or not & if the execution proceedings in which that question arises cannot be transferred to the Bombay Agricultural Debtors' Relief Act Ct, it would be for the civil Ct. to decide that question under Section 15. Therefore, in our opinion in this particular case as the appln. for execution filed by the D. H. on 15-2-1947, could not be transferred to tho Bombay Agricultural Debtors Relief Act Ct. under Section 19 it was for the executing Ct. to determine the question raised by the J. D. & therefore the executing Ct. rightly determined the questions that it did.

3. We would, therefore, set aside the order of the lower appellate Ct. & direct the lower appellate Ct. to hear the appeal preferred by the J.D. on merits & dispose of it according to law.

4. A point has also been raised by Mr. Kalagate that an appeal does not lie from the order of the lower appellate Ct. That contention is obviously not tenable. According to Mr. Kalagate the right of appeal under the Bombay Agricultural Debtors' Relief Act is limited & the right of appeal is provided under Section 43 & Sub-clause (3) says that no second appeal shall be against any decision, order or award of the Ct. under this Act. The short & simple answer to Mr. Kalagate's contention is that the order made by the executing Ct. was not an order under the Bombay Agricultural Debtors' Relief Act. It was an order made under Section 47, Civil P. C & the right of appeal must be regulated by the Code and not by Bombay Agricultural Debtors' Relief Act.

5. Appellant to get his costs of this appeal.


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