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Basavanappa Shivappa Vs. Neelappa Adiveppa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 1349 of 1953
Judge
Reported inAIR1956Bom201
ActsDebt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 2(5), 4, 6, 14, 46 and 115; Code of Civil Procedure (CPC), 1908 - Order 1, Rule 10
AppellantBasavanappa Shivappa
RespondentNeelappa Adiveppa and ors.
Appellant AdvocateA.G. Desai and ;K.J. Abhyankar, Advs.
Respondent AdvocateV.H. Gumaste, Adv.
Excerpt:
- .....own right. this application hasbeen allowed.3. mr. desai for the petitioner contends that the learned judge was in-error in allowing the application for transposition at this late stage. he argues that the preliminary issues have al-ready been found, the matter has been agitated in three courts and it is at a very late stage that she two cosharers chose to apply for transposition. in my opinion this argument cannot succeed.section 46, bombay agricultural debtors relief act makes the provisions of the code of civil procedure applicable to proceedings under the act, and the proviso to section 46 enables the court to exercise its powers to add or strike out parties under rule 10 of order 1 of the code in a proper case and on such terms as may appear to the court to be just. this.....
Judgment:
ORDER

1. In Proceedings taken under Section 4, Bombay Agricultural Debtors Act, two persons who were shown in column 7 as co-sharers with the original petitioner have been ordered to be transposed as petitioners. It is this order toy transportation that is challenged by Mr. Desai on behalf of the creditor.

2. The transaction in question took placeon the 5-6-1931. It was an ostensible sale effected by Neelappa, Basappa and Kalappa. Neelappa applied in 1949 for adjustment of the debt evid-enced by this transaction. The trial Court held that the transaction was a sale. In appeal, it has been held to be a mortgage and the proceedings have been sent back for taking accounts.

A revisional application preferred against thisorder was summarily dismissed by this Court on 21-7-`52. At this stage, Basappa and Adiveppa, son of Kalappa, applied to be transposed as petitioners in these proceedings. They alleged that they were co-sharers in respect of the property, subject-matter of the original transaction, and that they were interested in prosecuting the pro-ceedings in their own right. This application hasbeen allowed.

3. Mr. Desai for the petitioner contends that the learned Judge was in-error in allowing the application for transposition at this late stage. He argues that the preliminary issues have al-ready been found, the matter has been agitated in three courts and it is at a very late stage that She two cosharers chose to apply for transposition. In my opinion this argument cannot succeed.

Section 46, Bombay Agricultural Debtors Relief Act makes the provisions of the Code of Civil Procedure applicable to proceedings under the Act, and the proviso to Section 46 enables the Court to exercise its powers to add or strike out parties under Rule 10 of Order 1 of the Code in a proper case and on such terms as may appear to the Court to be just. This proviso makes it clear that the addition of the parties or striking them out would not necessarily be governed by considerations of delay.

In the present case, the two parties that have been transposed as petitioners were shown as cosharers in column 7, and it was really the duty of the Court under Section 14 of the Act to issue noticeto these co-sharers. In my opinion, it would be unfair to penalise the parties for the omission ofthe Court to issue notice to them. The creditoras much as the petitioner and the two co-sharerswere interested in the property, the transaction in respect of which was being adjudicated upon,

Therefore, I am unable to accept the argument that the order passed by the learned Judge transposing the two co-sharers to the side ofthe petitioners suffers from any infirmity for whichinterference of this Court under S. 115 would be justified.

4. Mr. Desai then argued that the order transposing these parties to the side of petitioners need not and cannot mean that the petitioners would automatically be entitled to an order for the adjustment of debts. What points can hereafter be raised between the added petitionersand the creditors and what issues would have to be tried and decided between them has been elaborately discussed by the learned Judge below.

I do not think it is necessary for me to coyer that ground in the present revisional application. Mr. Desai has Invited my attentionto the fact that having regard to the definition of the word 'debtor', contained in Section 2, Sub-section (5) of the Act and having regard to the provisions of Section 6, different considerations may arise and different issues may fall to be considered between theadded parties and the creditor, according as the added parties and the original debtor were members cf an undivided family or were separate.

These points were raised before the learned Judge and he has observed that the transpositionof the present additional parties would not necessarily mean that nothing more remains to be decided between them and the creditor. Therefore, in my opinion, it is unnecessary to deal with Mr. Desai's argument that he should be entitled to raise points of defence against the parties who have been added by the order under revision.

5. The revision application therefore failaand the rule is discharged with costs.

6. Rule discharged.


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