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Eknath Dayaram Wani Vs. Kishordas Thakurdas Sheth - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 342 of 1950
Judge
Reported in(1963)65BOMLR595; 1963MhLJ782
AppellantEknath Dayaram Wani
RespondentKishordas Thakurdas Sheth
DispositionAppeal dismissed
Excerpt:
.....in the high court from the decision of the district court in appeal under section 43 of the bombay agricultural debtors relief act, 1947, is included in the period which section 52 of the act permits to be excluded in the computation of the period of limitation for a suit or proceeding referred to in that section.;the expression 'court in appeal' in section 52 of the bombay agricultural debtors relief act, 1947, has been used in a wider sense and includes any court, which has the power to bring under review or revision a decision of an inferior court and will include the high court exercising its power of revision under the civil procedure code, 1908.;venkatragayya appa row v. murala sriramalu (1912) 17 i.c. 593, venkataswami v. sara bai [1943] a.i.r. 633 lal. bihari lall v. bani..........whether the time taken in prosecuting a revision application against the appellate decision in a bombay agricultural debtors relief proceedings could be excluded in computing the limitation for the execution application, which the decree-holder has filed in the present case. an instalment decree was passed in favour of the decree-holder on january 18, 1941. the first darkhast in execution of this decree was given on march 15, 1944, and it was disposed of on february 21, 1945. subsequent thereto on july 30, 1947, the bombay agricultural debtors relief act was introduced and the decree-holder made an application to the bombay agricultural debtors relief court for the adjustment and recovery of his decretal debt. in these proceedings, on february 8, 1955, the judgment-debtors were held.....
Judgment:

V.S. Desai, J.

1. The short question involved in this second appeal is whether the time taken in prosecuting a revision application against the appellate decision in a Bombay Agricultural Debtors Relief proceedings could be excluded in computing the limitation for the execution application, which the decree-holder has filed in the present case. An instalment decree was passed in favour of the decree-holder on January 18, 1941. The first Darkhast in execution of this decree was given on March 15, 1944, and it was disposed of on February 21, 1945. Subsequent thereto on July 30, 1947, the Bombay Agricultural Debtors Relief Act was introduced and the decree-holder made an application to the Bombay Agricultural Debtors Relief Court for the adjustment and recovery of his decretal debt. In these proceedings, on February 8, 1955, the judgment-debtors were held not to be debtors under the Bombay Agricultural Debtors Relief Act. They appealed against the said decision and the appeal was dismissed on April 11, 1956. They thereafter filed a Civil Revision Application to the High Court and that application was rejected on September 5, 1956. Thereafter ton November 26, 1956, the present Darkhast No. 277 of 1956 was filed by the heirs of the decree-holders. It was contended by the judgment-debtors that the Darkhast was barred by time. The decree-holders sought to save the bar of limitation by the exclusion of the time during which the Bombay Agricultural Debtors Relief Act proceedings were continuing including the time between April 11, 1956 and September 5, 1956, during which the revision application in the said proceedings was pending in the High Court. It is undisputed that if the decree-holder is entitled to the exclusion of the said entire period, his Darkhast would be in time.

2. It was contended on behalf of the judgment-debtors that under Section 52 of the Bombay Agricultural Debtors Relief Act exclusion of time is allowed only in respect of the period during which the proceedings under the Bombay Agricultural Debtors Relief Act were pending either before the Bombay Agricultural Debtors Relief Court or in the Court of appeal. The period taken in the revision application proceedings against the decision of the appellate Court in the Bombay Agricultural Debtors Relief Act proceedings was not allowed to be excluded under Section 52 of the Bombay Agricultural Debtors Relief Act and if the said period is not available for exclusion in the computation of the period of limitation, the present Darkhast would be barred by time. This contention was negatived by both the Courts and in my opinion rightly. Under Section 51(A) of the Bombay Agricultural Debtors Relief Act the jurisdiction of the Civil Court to entertain or proceed with any suit or proceeding in respect of any matter, which is pending before the Court under the Bombay Agricultural Debtors Relief Act is taken away. The pendency of the matter before the Court tinder the said Act continues upto the point when a finality attaches to the decision in the said proceedings. It cannot be denied that a Civil Revision Application is capable of being entertained against an appellate decision of the Bombay Agricultural Debtors Relief Court and it is the decision in the Civil Revision Application, in case it is filed, that marks the termination of the Bombay Agricultural Debtors Relief proceedings. By reason of the provisions of Section 51(A), therefore, the decree-holder was not entitled to prosecute his darkhast in the Civil Court until the revision application was decided. In view of the prohibition introduced by Section 51(A) in the matter of instituting or prosecuting a suit or a proceeding in a Civil Court in matters which on the introduction of the Bombay Agricultural Debtors Relief Act were required to be taken to the Courts under that Act, provision is made in Section 52 of the Bombay Agricultural Debtors Relief Act for the exclusion of the time taken in the proceedings under the Bombay Agricultural Debtors Relief Act in computing the period of limitation for such suits or proceedings in case they remain available to the parties on the termination of the Bombay Agricultural Debtors Relief Act proceedings. Having regard to the intention and object in enacting the said provision, it would appear that the time, which it would permit to be excluded, would be the entire period for which the proceedings continued under the Bombay Agricultural Debtors Relief Act and not only a part of such time. It is, however, argued that the language used in the said section permits the exclusion of the time spent in the Court of first instance and the Court of appeal only and not the further time taken in the revision from the decision of the appellate Court. Now, what the section says is 'the period during which the proceedings in respect of such debt were prosecuted before the Court or the Court in appeal shall be excluded'. The Court referred to in the provision is undoubtedly the Court as defined in Section 2(5) of the Bombay Agricultural Debtors Relief Act. The Court in appeal, it is said, is the District Court to which an appeal from the decision of the Bombay Agricultural Debtors Relief Court lies under Section 43 of the Act. It is, therefore, argued that the period referred to in the said section is the period taken in the Bombay Agricultural Debtors Relief Court and in the District Court in the appeal from the decision of the trial Court. The section, it must be noted, does not speak of the period during which the appeal was prosecuted but it speaks of the period during which the proceeding in the Court in appeal was prosecuted. If the expression 'Court in appeal' is taken to mean the Court to which an appeal has been prescribed under the Act, the period during which the proceeding was prosecuted in the Court in appeal would mean the period taken in prosecuting the appeal in the District Court. If, on the other hand, the expression 'Court in appeal' can have a wider meaning as any Court, which has the power to bring under review or revision the decision of an inferior Court, the language used in the section will include the period, which was spent in prosecuting the revision in the High Court as well. I see no reason why such wider meaning cannot be given to the said expression in the provision under consideration. On the other hand, it seems to me that there is a very strong reason why such a wider meaning is required to be given to the said expression if at all it is possible in view of the effect of Section 51(A). That section, as I have already pointed out, prohibits the prosecution of a suit or proceeding? while the Bombay Agricultural Debtors Relief Act proceedings are continuing in respect of the matter and the curious result that may follow from accepting a narrower meaning for the expression 'Court in appeal' will be that while the suitor cannot prosecute his suit or proceeding in the ordinary Civil Court while the revision application in the Bombay Agricultural Debtors Relief proceedings is pending in the High Court, limitation will continue to run against him and will even make the remedy unavailable to him when the said revision is over. One may legitimately presume that such unfair result could not have been intended by the Legislature in enacting Section 52. It cannot be denied that in construction of statutes a construction, which yields to a fair and reasonable meaning, is more readily to be accepted than one which leads to curious or anomalous results and in interpreting provisions of limitation, the interpretation which saves a remedy would be preferable to one which seeks to kill it. That a wider connotation of the expression 'Court in appeal' as meaning a higher Court, which has the power to bring under review the decision of an inferior Court, is possible, can be seen from the decision of several Courts dealing with the provisions of Section 14 of the Indian Limitation Act. The provisions of that section, so far as the point before me is concerned, is analogous to the provisions of Section 52 of the Bombay Agricultural Debtors Relief Act and purports to exclude, subject to the fulfilment of certain other conditions with which we are not concerned, the period for which the suitor was prosecuting another civil proceeding in the Court of first instance or in the Court of appeal, On the interpretation of the expression 'proceeding in a court of appeal' appearing in the said provision, there is almost an unanimity of judicial opinion that the expression 'Court of appeal' would mean a higher Court, which has the power to bring under review the decision of an inferior Court and will, therefore, include the High Court exercising its power of revision under the Civil Procedure Code. See Venkatragayya Appa Row v. Murala Sriramalu (1912) 17 I.C. 593, Venkataswami v. Sara Bai A.I.R. [1943] Mad. 633, Lal Bihari Lall v. Bani Mahava : AIR1949Pat293 ., Perumal v. Pandaram A.I.R. [1951] T.C. 26, Chhuttam Lal v. Dwarka Prasad [1938] All. 192 and Laxmamdas v. Chunnilal . It may be pointed out that the expression in Section 14 of the Limitation Act is 'Court of Appeal', while the expression in Section 52 of the Bombay Agricultural Debtors Relief Act is 'Court in appeal', but that, in my opinion, makes no difference and in the context of the provisions of Sections 51A and 52 I do not think that any different meaning is intended for the expression 'Court in appeal' used in Section 52A from the meaning of the expression 'Court of appeal' used in Section 14 of the Limitation Act. In my view the expression 'Court in appeal' in Section 52 of the Bombay Agricultural Debtors Relief Act is used in a wider sense to mean a Court, which has the power to bring under review or revision a decision of an inferior Court and consequently the period during which a revision is prosecuted in the High Court from the decision of the District Court in appeal under Section 43 of the Act is included in the period which the said section permits to be excluded in the computation of the period of limitation for a suit or proceeding referred to in the said section.

3. The learned advocate for the appellant has invited my attention to a decision of this Court in Narayan v. Hari : AIR1930Bom505 in support of his submission that the view that I am inclined to take in the present case is inconsistent with the view expressed in the said decision. In that case, in the computation of the period prescribed under Article 11A of the Limitation Act for a suit contemplated under Order XXI, Rule 103, of the Code of Civil Procedure, the time during which the plaintiff had prosecuted a revision in the High Court against the order made under Order XXI, Rule 99, was sought to be excluded. It was held that the period sought to be excluded could not be allowed under Section 14 of the Limitation Act. The decision was, however, not based on the ground that the 'Court of appeal' would not include the High Court in its revisional jurisdiction. The ratio of the decision was that the proceeding of the revision application could not be said to have been prosecuted in good faith. The learned advocate is, therefore, not right in saying that the decision in that case is inconsistent with the view which I am taking. Another case to which he has referred is Sipahimalani v. Fidahussein (1955) 58 Bom. L.R. 344. In that case the distinction between a revision and an appeal and that between the revisional and the appellate jurisdiction have been considered in the context of the question, which was before the Court, namely, whether the order of the Custodian had merged in the revisional order passed by the Custodian General. What has been argued, relying on that case, is that since there is difference between an appeal and a revision, the expression 'Court in appeal' cannot include a Court exercising revisional jurisdiction. Now, nobody disputes that there is a difference between a revision and an appeal, but that does not mean that the expression 'proceeding in a Court in appeal in the context of a given provision cannot include a proceeding in revision in a higher Court from the decision of an inferior Court. The case cited by the learned advocate is, therefore, no authority for the proposition which he has sought to make. Both the cases referred to by the learned advocate do not, therefore, help him.

4. In the result, therefore, the appeal fails and is dismissed with costs.


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