1. The facts of the case, so far as this appeal is concerned, are simple. One Radhakison Chunilal Marwadi, the father of respondents Nos. 6, 7 and 8, obtained an award decree against the appellants for the recovery of Rs. 5,455-2-0. The amount was made payable by instalments and in case of default the decree-holder was to make an application to the Court under Section 15B of the Dekkhan Agriculturists' Relief Act. After the death of Radhakison his heirs, including his sons, presented a darkhast for the execution of the decree, and for recovering the decretal amount by the sale of the mortgaged property under Section 15B of the Act. After the papers were sent to the Collector, the darkhastdar gave an application on August 1, 1933, that the darkhast should be struck off. It was granted on the same day, and pending the return of the papers from the Collector, the appellants alleged that there had been an adjustment of the decree and that respondent No. 5 Ramgopal Putiamchand had obtained a sale-deed from the appellants on behalf of Laxminarayan Chunilal Marwadi in full satisfaction of the decree (exhibit 29).
2. The adjustment is alleged to have taken place on March 23, 1933, but it was not certified to the Court within time. The lower Court held that the suit was time-barred as Section 71 of the Dekkhan Agriculturists' Relief Act could not be availed of, and left the whole matter to be decided by a separate suit or an application. It is from that order that the present appeal is filed.
3. A preliminary objection was raised that since the darkhast was disposed of and the question of the adjustment was not finally decided this appeal is not maintainable. But this application, though presented after the darkhast was disposed of, was treated by the executing Court as an application under Order XXI, Rule 2, of the Code of Civil Procedure, and held to be time-barred. That Order falls within Section 47 of the Code, and I hold that this appeal is competent.
4. The main question to be decided is whether the application is in time by reason of Section 71 of the Dekkhan Agriculturists' Relief Act. If that section is not applicable, the application is obviously time-barred under Article 178 of the Indian Limitation Act, Section 71 of the Dekkhan Agriculturists' Relief Act providesl that the last clause of Section 258 of the Code of Civil Procedure [now Order XXI, Rule 2(2)] shall not apply to payments out of Court made in any proceeding under that Act, in any case where an acknowledgment by the judgment-creditor for the same is produced, or when the payment is either admitted by him or proved.
5. It is urged on behalf of the respondents that as the alleged adjustment was not made in any proceeding under the Dekkhan Agriculturists' Relief Act, the applicants cannot claim the benefit of Section 71 of that Act. The executing Court has upheld this contention on the authority of Laxmm Ganesh v. Ramabai Vmkatesh I.L.R. (1925) Bom. 236 : Bom. L.R. 736. That decision was based on the view taken in Mohan v. Tukaram I.L.R. (1895) 21 Bom. 63 and Govindrao Narhar v. Ambalal Mohmlal I.L.R. (1911) Bom. 310 : 13 Bom. L.R. 352, which lay down that an application to file an award is not a suit of the kind contemplated by the Dekkhan Agriculturists' Relief Act. These rulings apply to the facts of the present case. The award decree shows that the applicants were not described as agriculturists. Their occupation was described as trade, and in darkhast also their occupation was stated as trade. Presumably in the award which is not on record, the same description must have been given of the applicant's occupation. Hence the suit for filing of the award cannot be regarded as a proceeding under the provisions of the Dekkhan Agriculturists' Relief Act, although in the decretal order the defendants are given the benefit of Section 15B of the Dekkhan Agriculturists' Relief Act. That benefit is not given under the provisions of the Dekkhan Agriculturists' Relief Act, but the judgment-creditors were, in case of default, allowed to execute the decree in accordance with the provisions of Section 15B of the Dekkhan Agriculturists' Relief Act. Instead of copying out the wording of Section 15B in the decrial order, the arbitrator merely referred to the section itself. It does not mean that the appellants were then held to foe agriculturists. The only benefit given to them was that instead of the decree being executed under the ordinary provisions of the Code, they could insist that it should be executed in accordance with the provisions of Section 15B of the Dekkhan Agriculturists' Relief Act.
6. I, therefore, hold that these proceedings cannot be regarded as proceedings under the Dekkhan Agriculturists' Relief Act, and hence the appellants cannot get the benefit of Section 71. It follows that the appellants' application was time-barred when it was presented, and neither the payment nor the adjustment can therefore be recognised by the Court.
7. Section 71 of the Dekkhan Agriculturists' Relief Act applies, only to payments, but not to an adjustment, but in the view I have taken it is not necessary to consider whether the alleged adjustment in this case amounts to payment in kind.
9. I dismiss the appeal with costs.