Skip to content


Shankar Sadu KamaThe Vs. Chunilal Rupchand Dakale and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1698 of 1956
Judge
Reported inAIR1959Bom294; (1958)60BOMLR901; ILR1958Bom1177
ActsIndian Limitation Act, 1908 - Sections 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 22, 29 and 29(2); Bombay Agricultural Debtors Relief Act, 1947 - Sections 2(4), 2(5), 4, 4(1), 14, 43, 43(2) and 46; Bombay Agricultural Debtors Relief (Amendment) Act, 1948; Code of Civil Procedure (CPC), 1908
AppellantShankar Sadu Kamathe
RespondentChunilal Rupchand Dakale and anr.
Appellant AdvocateN.D. Dange, Adv.
Respondent AdvocateM.V. Paranjpe, Adv. and ;R.J. Rele, Adv. for ;Y.V. Chandrachud, Adv.
Excerpt:
.....therefore, the debtor presented his application in the proper court on 14-4-1948, then he did not make his application for adjustment of his debts before 1-8-1947 within the meaning of section 4. it is obvious that the debtor's application must fail as he did not comply with the provisions of section 4 (1). 4. but it is contended on behalf of the petitioner that even so, the petitioner's application must be taken to have been made before 1-8-1947, because the petitioner was entitled to rely upon the provisions contained in section 14(2) of the indian limitation act. in computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or in a court..........relief act, 1947, a board was constituted on 1-2-1947 to enable a debtor or his creditor to make an application for adjustment of the debts. the time before which the application was to be made was 1-8-1947. therefore, an application has to be made on or before 31-7-1947. on 15th july, 1947 the petitioner made an application in the court of the civil judge, junior division, saswad, for a declaration that the sale deed dated 14-9-1935 for the consideration of rs. 800 was intended to operate as a mortgage. on 13th april, 1948, this application was returned to the petitioner to be presented to the proper court and as the petitioner resided in poona, he presented the application on 14-4-1948 in the court of the civil judge, junior divison, poona. on 23-12-1954, the learned judge of.....
Judgment:

Dixit, J.

1. On 14-9-1935, the petitioner executed in favour of the first opponent a document purporting to be a deed of sale. The petitioner is a resident of Poona, while the first Opponent resides at Saswad in the Poona District. After the passing of the Bombay Agricultural Debtors Relief Act, 1947, a Board was constituted on 1-2-1947 to enable a debtor or his creditor to make an application for adjustment of the debts. The time before which the application was to be made was 1-8-1947. Therefore, an application has to be made on or before 31-7-1947. On 15th July, 1947 the petitioner made an application in the Court of the Civil Judge, Junior Division, Saswad, for a declaration that the sale deed dated 14-9-1935 for the consideration of Rs. 800 was intended to operate as a mortgage. On 13th April, 1948, this application was returned to the petitioner to be presented to the proper Court and as the petitioner resided in Poona, he presented the application on 14-4-1948 in the Court of the Civil Judge, Junior Divison, Poona. On 23-12-1954, the learned Judge of the Court made an order, declaring that the transaction dated 14-9-1935 was in the nature of a mortgage and following the declaration, he made a further order that, on taking accounts, the debtor was not liable to pay anything to the creditor. The creditor and another person preferred an appeal in the District Court, Poona, under Section 43 of the Act, and that appeal was heard by the Second Extra Assistant Judge, Poona, who, on 10-7-1956, allowed the appeal and dismissed the application made by the petitioner for adjustment of his debts. Feeling aggrieved by the appellant order, the debtor has come up on this revisional application, and the point taken on his behalf by his learned Advocate, Mr. N. D. Dange, is that the Court below was wrong in holding that the application presented in the Court of the Civil Judge, Junior Division, Poona, was barred by limitation.

2. In order to appreciate the contention raised, it is necessary to refer to some of the provisions of the Act. Section 2 (4) defines a 'debt.' Section 2 (5) defines the expression 'debtor.' Section 4 (1) provides:

'Any debtor ordinarily residing in any local area for which a Board was established under Section 4 of the repealed Act on or after the 1st February, 1947, or his creditor may make an application before 1-8-1947 to the Court for the adjustment of his debts.'

The requirements of Section 4 (1), therefore, are (1) a debtor must ordinarily reside in any local area for which a Board was established under Section 4 of the repealed Act; (2) the Board must have been established on or after 1-2-1947 and (3) whether a debtor or his creditor, the person has to make an application before 1-8-1947 to the Court. It is not in dispute that the petitioner ordinarily resides in Poona. It is not in dispute also that the Board was constituted under Section 4 of the repealed Act on 1-2-1947. It is also not in dispute that the first opponent is a resident of Saswad in the Poona District. The narrow question which we have to decide is whether Section 4 (1) prescribes any period of limitation for the making of an application for the adjustment of debts. Two other the debtor's sections may be noticed. One oe these is Section 43 which deals with appeals. Section 43, by sub-section (2), provides:

'An appeal from the Court shall lie to the District Court, and the appeal shall be made within sixty days from the date of the coming into force of the Bombay Agricultural Debtors' Relief (Amendment) Act, 1948, or from the date of the order or award, as the case may be, whichever is later. In computing the period of sixty days the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908, shall so far as may be, apply.'

Section 46 is another section which may be referred to and it says:

'Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings under this Chapter.'

It is, therefore, plain that the procedure applicable to a proceeding under the Bombay Agricultural Debtors Relief Act, 1947, is the procedure laid down in the Code of Civil Procedure, save in so far as it is otherwise expressly provided in the Act. With regard to the question of the applicability of the Indian Limitation Act, there is no section which refers to the Act expressly save Section 43 to which I have already referred.

Now, what happened in the present case was this. The debtor made his application on 15-7-1947. He had to make the application before 1-8-1947. So far, therefore, as the making of an application before a specified date is concerned, the debtor did make an application before the due date. But the debtor did not make the application to the Court within whose jurisdiction he was ordinarily residing. As I have already pointed out, he made the application in the Court of the Civil Judge, Junior Division, Saswad, while he was a resident of Poona. As he did not present the application to the proper Court, the application was returned to the petitioner for presentation to the proper Court and this, he filed in the proper Court on 14-4-1948. If therefore, the debtor presented his application in the proper Court on 14-4-1948, then he did not make his application for adjustment of his debts before 1-8-1947 within the meaning of Section 4. It is obvious that the debtor's application must fail as he did not comply with the provisions of Section 4 (1).

4. But it is contended on behalf of the petitioner that even so, the petitioner's application must be taken to have been made before 1-8-1947, because the petitioner was entitled to rely upon the provisions contained in Section 14(2) of the Indian Limitation Act. Section 14 (2) of the Indian Limitation Act may be quoted with advantage. It runs as follows:

'In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a Court, which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.'

In order to enable the petitioner to rely successfully upon the provisions contained in Section 14(2), he must show that his case falls within Section 29(2), of the Indian Limitation Act.

5. Section 29 (2) of the Indian Limitation Act, so far as material, provides as follows:

'Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the first Schedule, the provisions of Section 3 shall apply, as if such period were prescribed there for in that schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:

(a) the provisions contained in Section 4, Secs. 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.'

Therefore, in determining the question raised, we have to consider the provisions of Section 4 of the Bombay Agricultural Debtors Relief Act, 1947, Section 14(2) and Section 29 (2) of the Indian Limitation Act. Section 29 (2) is composed of two parts and the two parts are connected by the conjunction 'and.' The necessary condition for the application of the first part is the condition that there must be a period of limitation prescribed by the special or local law and also a period of limitation prescribed in the first Schedule and when such is the case the provisions of Section 3 of the Indian Limitation Act are to apply, in which case the period prescribed by the special or local law would be as though that period of limitation is inserted in the first Schedule. The second part of Section 29 (2) is different. The application of that part of the provision arises when a period of limitation is to be determined and when it is determined, the provisions contained in Section 4, Section 9 to 18 and Section 22 are to be taken into account, provided they are not expressly excluded by the special or local law. It follows that if the application of these sections is expressly excluded by the special or local law, then there is no question of those provisions applying. Mr. Dange argues that there is nothing in the Bombay Agricultural Debtors Relief Act, 1947 to show that the provisions including those under Section 14 have been excluded by the Bombay Agricultural Debtors Relief Act, 1947, and Mr. Dange would seem to be right. But there is a difficulty in his way, and that is, whether the first part of Section 29 (2) is to be taken into consideration or the second part of the section is to be taken into consideration, in either case, the special or local law or the Indian Limitation Act, must prescribe a period of limitation. What Section 14 does is really to extend the period of limitation. Section 14(2) also lays down certain conditions for the application of that provision, and what it does is that a certain period of time is to be excluded. Mr. Paranjpe has emphasized the meaning of the expression 'computing' as occurring in Section 14 (2). The meaning of the expression 'compute' is given in Webster's New International Dictionary, Second Edition, page 551 as 'to determine by calculation; to reckon, or count; to take account of; to make up or count.' Therefore, when Section 14 (2) speaks of computation of a period of limitation, what is contemplated by Section 14(2) is that in considering the period of limitation prescribed for any application certain time during which the applicant was prosecuting with due diligence another civil proceeding has to be executed and that is why I suggest that Section 14(2) really extends the period of limitation. In the light of the provisions contained in Section 14 (2) and Section 29 (2), one has again turn to Section 4. One of the requirements of Section 4(1) is that the application must be made before 1-8-1947. This means that any application made on the 1st August, 1947 or thereafter would not be maintainable. Mr. Dange has suggested that Section 4(1) prescribes as period of limitation and his argument is as follows: He says that there are two termini in Section 4(1). The first is the 1st February 1947 and the second is 1-8-1947. It is, therefore, said that Section 4(1) prescribes a period of limitation which commences on 1-2-1947 and which ends before the 1st August 1947. But, with respect, Mr. Dange has overlooked an important consideration. The date 1-2-1947, has no reference whatever to the making of an application. The date 1-2-1947 has reference to the constitution of a Board established under Section 4. In other words, when a Board is established on or after 1-2-1947, a debtor or his creditor may make an application before 1-8-1947. In order to succeed, Mr. Dange has to show that Section 4(1) prescribes a period of limitation and that it prescribes a period of limitation for the making of an application. At one stage, Mr. Dange was driven to a somewhat untenable position that even with the date 1-8-1947, he would say that Section 4 (1) constitutes a period of limitation. Now, I have never heard it suggested that when one speaks of a period of limitation the period can be determined by reference to one terminus only. The period must, of necessity, contemplate two dates; that is the two ends of the period of limitation, and there is nothing in Section 4 (1) to suggest that the date 1-2-1947 has anything to do with the making of an application. It is true that a debtor or his creditor cannot make an application unless a Board is constituted. But it is one thing to establish a Board on or after 1-2-1947 and it is quite another to enable a debtor or his creditor to make an application before the 1st August, 1947. We are not therefore, prepared to accept the argument of Mr. Dange that Section 4 (1) prescribes a period of limitation. In order to succeed, Mr. Dange has to show that Section 4(1) prescribes a period of limitation for the making of an application, in which case, of course, Section 29 (2) will apply and as soon as Section 29(2) applies, Section 14(2) must obviously apply. The true view appears to me to that Section 4(1) does not prescribe a period of limitation. All that it does is to mention a point of time on or before which an application may be made by a debtor or his creditor but after which neither the debtor nor the creditor can make an application. If Section 4 (1) is contrasted with the language of the proviso to Section 14, that also indirectly supports the construction which we have adopted. Section 14 of the Bombay Agricultural Debtors Relief Act, 1947, speaks of a notice and its compliance and the proviso to Section 14 says that if the debtor or any creditor is for good and sufficient cause unable to comply with the notice within the time specified therein, the court may extend the period for the submission of the statement. If the Legislature made a provision in Section 14 for extending the period for the submission of the statement, there is no reason why for a sufficient cause the Legislature should not have provided in Section 4 for the extension of the date mentioned in Section 4 (1). But this apart, the real difficulty in accepting the argument of Mr. Dauge seems to me to be that Section 4 (1) does not prescribe a period of limitation which is necessary for the application of Section 29(2) and also necessary for the application of Section 14 (2) read with Section 29(2). The learned Judge of the Court below reached, if I may say so, somewhat conflicting conclusions. He observed: The time provided by the B.A.D. Act for filing petitions is not a period of limitation and the application under the B.A.D.R. Act is not a civil suit'. Then he observed: 'The present application therefore as presented in Poona Court is clearly barred by limitation'. I do not see how an application can be clearly barred by limitation unless there is a period of limitation fixed by the Act.

6. At the Bar, reference was made to a Judgment of the learned Chief Justice delivered by him on 29th October 1954 in C.R.A. No. 411 of 1953. In that case the petitioner made an application for adjustment of his debts on the 19th July 1945. The application in question was returned to the petitioner on the 13th March 1950 for presentation to the proper Court and the application was presented on the 14th of March 1950 in the proper Court. The Court in which the application was presented dismissed the application, holding that it was not maintainable. An appeal was preferred from that order in the District Court and that Court dismissed the appeal on the ground that no appeal lay against the decision of the trial Court. On these facts, the question arose as regards the applicability of Section 29(2) of the Indian Limitation Act and the learned Chef Justice observed:

'Now, Section 29(2) has been enacted in order to obviate the necessity of the Legislature incorporating in every special or local law certain sections of the Indian Limitation Act. A different period of limitation or a period of limitation not embodied in the First Schedule may be prescribed in the special or local law and Section 29 (2) as it incorporates certain sections of the Limitation Act in the special or local law which may be enacted, and the Section 14, and clause (a) of Section 29(2) expressly provides that these section shall be deemed to be part of the special or local law unless they are expressly excluded by such special or local law.'

As we read the Judgment, the learned Chief Justice considered the provisions of Section 29(2), confining his attention, for the moment, to the first part of Section 29(2) and his view was that for the application of the first part of Section 29(2) what is necessary is that there must be a period of limitation fixed under the Indian Limitation Act and there must be a period of limitation fixed by the special or local law and the two periods must be different. But, with respect, it would appear that he did not, in terms, consider the second part of Section 4 (1) was the Section 4(1) imposed a limitation upon the jurisdiction of the Court in dealing with an application made under Section 4(1). He pointed out - and we agree with him that Section 4 does not prescribe a period of limitation. But, with respect, we are unable to agree with the view when he said; 'The only jurisdiction that the Bombay Agricultural Debtors Relief Act has is to deal with applications which are presented before the date mentioned in Section 4'. It seems to us that the question is not one of jurisdiction or of a limitation upon the Court's jurisdiction; but the correct position is that the Court can deal with each and every application presented before the 1st August 1947 but that the Court can not deal with an application presented on the 1st August, 1947 or thereafter. The true view, therefore, would appear to be that an application made before 1st August 1947 would be maintainable, while an application made on the 1st August 1947 or there after would not be maintainable. However that may be, it is quite clear to us that upon a fair, plain and natural reading of Section 4(1), the conclusion seems to be irresistible that Section 4(1) does not prescribe a period of limitation but only provides that an application contemplated by Section 4(1) has to be presented before a specified date which is the 1st August 1947. If Section 4(1) does not prescribe a period of limitation, it is evident that Section 29(2) will have no application. It follows that if Section 29(2) has no application, Section 14(2) will have no application and if Section 14(2) has no application, then the application made under Section 4 by the present applicant must fail.

7. The result is that this application fails and the rule will be discharged. The consequence of our finding would be that the applicant-debtor will lose the property. It is, therefore, proper that on this application there should be no order as to costs.

8. Application dismissed.


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