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Maruti Dasharath Vs. Aslyabapu Krishna and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtMumbai High Court
Decided On
Case NumberCivil Ref. No. 4 of 1952
Judge
Reported inAIR1953Bom330; (1953)55BOMLR220
ActsDebt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 4, 17, 19(1), 19(7) and 34; Code of Civil Procedure (CPC), 1908 - Order 46, Rule 1; Bombay Agricultural Debtors Relief Act, 1939 - Sections 45; Dekkhan Agriculturists' Relief Act - Sections 10A and 15D
AppellantMaruti Dasharath
RespondentAslyabapu Krishna and ors.
Appellant AdvocateR.W. Adik, Adv.
Respondent AdvocateJ.G. Rele, Adv.
Excerpt:
.....to january 1, 1927, by a plaintiff residing in an area for which a board was established under the bombay agricultural debtors relief act, 1939, before january 1, 1947, cannot be transferred, under section 19(7) of the bombay agricultural debtors relief act, 1947, to the court exercising jurisdiction under that act.;somabhai shanabhai v. narandas zaverdas (1948) 51 bom. l.r. 461 followed.;tamanna v. shivappa (1952) civil revision application no. 437 of 1950, decided by bavdekar j., on february 13, 1952 (unrep) referred to.;a district judge to whom a reference is made under section 19 (7) of the bombay agricultural debtors relief act, 1947, must decide the question involved himself and he must not make a reference to the high court under order xlvi, rule 1, of the civil procedure code,..........in the court of the civil judge, senior division, ahmednagar, to the court established under the bombay agricultural debtors relief act. the point formulated by the learned district judge is as follows :'whether a suit instituted, for reliefs under sections 10a and 15d, dekkhan agriculturists' relief act in respect of a transaction evidenced by a sale-deed of a date prior to 1-1-1927, by a plaintiff residing in an area for which a board was established under the bombay agricultural debtors relief act of 1939 before 1-2-1947, can be transferred under section 19 (1), bombay agricultural debtors relief act of 1947 (the other conditions mentioned in the sub-section being existent)?'this point came before the learned district judge on a reference made to him by the court established under.....
Judgment:

Rajadhyaksha, J.

(1) This is a reference made to us by the learned District Judge of Ahmednagar with regard to the validity of the transfer of a certain suit pending in the Court of the Civil Judge, Senior Division, Ahmednagar, to the Court established under the Bombay Agricultural Debtors Relief Act. The point formulated by the learned District Judge is as follows :

'Whether a suit instituted, for reliefs under Sections 10A and 15D, Dekkhan Agriculturists' Relief Act in respect of a transaction evidenced by a sale-deed of a date prior to 1-1-1927, by a plaintiff residing in an area for which a Board was established under the Bombay Agricultural Debtors Relief Act of 1939 before 1-2-1947, can be transferred under Section 19 (1), Bombay Agricultural Debtors Relief Act of 1947 (the other conditions mentioned in the sub-section being existent)?'

This point came before the learned District Judge on a reference made to him by the Court established under the Bombay Agricultural Debtors Relief Act, and the learned District Judge apparently felt some doubt in view of two decisions of this Court in (1) -- 'Somabhai Shanabai v. Narandas Zaverdas', AIR 1949 Bom 308 (A), decided by the Chief Justice and Bavdekar J. and (2) a subsequent decision of Bavdekar J. sitting singly in -- 'Tamanna v. Shivappa', Civil Revn. Appln. No. 437 of 1950, D/- 13-2-52 (Bom) (B). He has, therefore, made this reference under the provisions of Order 46, Rule 1, Civil P. C.

(2) A preliminary objection taken by Mr. Rele to this reference is that under Sub-section (7) of Section 19, Bombay Agricultural Debtors Relief Act it was the duty of the learned District Judge to decide the point for himself. That sub-section reads as follows :

'When any question arises regarding the validity of the transfer or retransfer under this section of any suit, appeal, application, or proceeding or if any question arises whether any issue is or is not entirely unconnected with the adjustment of debts, the Court before which such question arises, if it is not the District Court, may refer the question for decision of the District Court. If such question arises before the District Court, the District Court itself shall decide the same. The decision of the District Court in either case shall be final.'

The matter came before the learned District Judge on a reference made to him under the first part of Sub-section (7) of Section 19, Bombay Agricultural Debtors Relief Act of 1947, and even if there was a conflict of decisions, it was still the duty of the learned District Judge himself to decide the question as required by that section. If there was an apparent conflict between two decisions of this Court, the learned Judge undoubtedly had the power to let himself be guided by the Division Bench decision and he should have decided the point himself instead of making a reference to us under Order 46, Rule 1. However, as the matter has come before us, we think we ought to decide the matter finally without sending the papers back to the learned District Judge to decide the issue himself as was required of him under Sub-section (7) of Section 19, Bombay Agricultural Debtors Relief Act.

(3) It seems to us that the point at issue is concluded by the Division Bench decision of this Court in the case of -- 'Somabhai Shana-bhai v. Narandas Zaverdas (A). The case that the learned Judges had then to consider was as to whether it was competent under Sub-section (1) of Section 19, Bombay Agricultural Debtors Relief Act to transfer to the Court established under that Act a suit which was filed after the period prescribed for the filing of applications under the Act had expired. In that case a suit was filed by the opponent in the Court of the Civil Judge, Senior Division, on 24-7-1946, claiming from the petitioner Rs. 29,999, as a debt due at the foot of accounts. This debt was alleged to have been incurred between, the dates 20-1-1945, and 15-12-1945. On 9-7-1947, the petitioner made an application to the Court for transfer of the suit to the Court under the Bombay Agricultural Debtors Relief Act, and the question that was argued before the learned Judges was whether the learned trial Judge was wrong in refusing the application for a transfer of the suit to the Court established under the Bombay Agricultural Debtors Relief Act. In that case the defendant was a resident of Thasara Taluka, and the Board for that Taluka was established on 1-4-1945. An application for the adjustment of debts had to be made within the time fixed by Section 4 of the Act and that time expired on 31-10-1945, which was the last date for making applications to the Board. The suit was filed on 24-7-1946, long after the period for filing the application had expired, and it was held by the learned Judge that

'Under Section 19(1), Bombay Agricultural Debtors Relief Act, 1947, only such suits, appeals, applications for execution and proceedings can be transferred which were pending at the date when an application under Section 4 could be made to the Special Court set up under the Act.'

As the particular suit was not pending before the ordinary Court on 31-10-1945, the Bench of this Court came to the conclusion that it was not a suit to which the provisions of Sub-section (1) of Section 19 applied and that therefore it could not be transferred to the Special Court established under the Bombay Agricultural Debtors Relief Act.

(4) In the case before us the Debt Adjustment Board for Ahmednagar Taluka was established on 1-5-1945, and the last date for making an application for the adjustment of debts to that Board was 31-10-1945, (see Section 17 of the Act). The present suit which was instituted on 17-3-1947, was therefore a suit to which the provisions of Sub-section (1) of Section 19 could not apply under the ruling of the Division Bench in -- 'Somabhai's case (A)'. Therefore, the Order of transfer which was made by the learned District Judge was contrary to the decision in that case. In our opinion the present case is even stronger than the one which the learned Judges had to consider in -- 'Somabhai's case (A)'. In Somabhai's ease (A) at least an application could have been filed, but was not filed before the period allowed for the filing of applications under the Bombay Agricultural Debtors Relief Act had expired. But the case that we have got to consider is a case where no application could at all have been filed under the Bombay Agricultural Debtors Relief Act, for in the present case the question is about a transaction which, was evidenced by a sale-deed dated 22-6-1916, which the plaintiff alleged was really in the nature of a mortgage, although ostensibly in the form of a sale. Under Section 45, Bombay Agricultural Debtors Relief Act, 1939, the Board had power to declare transactions purporting to be sales to be in the nature of mortgages. But this power was restricted by Sub-section (2) of that section which stated as follows :

'Nothing in this section shall apply to any transaction entered into before 1-1-1927.'

It is, therefore, clear that under the Act of 1939, no application could have been made to the Board for declaring this particular transaction to be in the nature of a mortgage. Section 4 of the new Act of 1947 enabled any debtor ordinarily resident in any local area for which a Board was established under Section 4 of the repealed Act on or after 1-2-1947, or a creditor to make an application before 1-8-1947, to the Court for the adjustment of the debts. As 'in the present case the Board was established before 1-2-1947, no applications could have been made under the new Act. Section 34 of the new Act made an exception in favour of an agricultural labourer, and on his own admission the plaintiff in the present suit was not an agricultural labourer. It is, therefore, conceded by Mr. Adik that no application could have been made by the plaintiff for the adjustment of debts either under the old Act or under the new Act. If that is so, we cannot see how merely because a suit has been filed, the debtor gets a right which ha did not have either under the old Act or under the new Act to get his debts adjusted. If would be going entirely contrary to the scheme of the two Acts to invest the plaintiff with a right which he did not possess under the Act merely because it happens that a suit has been filed by him long after the period during which an application could have been filed, if such an application was maintainable. It seems to us that there is this additional reason why there was no justification for a transfer of the suit from a regular Court to the Court established under the Bombay Agricultural Debtors Relief Act in this particular case. The plaintiff certainly did not have the right under the old Act, and there is nothing under the new Act which confers upon him a right which was denied to him under the old Act.

(5) The learned District Judge seemed to have felt some difficulty on account of the decision of Bavdekar J. sitting singly in --'Tamanna v. Shivoppa', (B). That application was decided after the decision, in 'Somabhai's case', to which the learned Judge himself was a party. We have considered the arguments to which the learned Judge has referred in distinguishing that particular case from the one decided by him as a member of the Bench in Somabhai's case. But with very great respect to the learned Judge we think that the view taken in the Division Bench case is the more acceptable one. As the decision of the Division Bench in Somabhai's case is binding upon us, we can see no reason how the present case could be distinguished from the one dealt with by the Division Bench in Somabhai's case. As we have stated, we think there is an additional reason why the decision in Somabhai's case should apply to the facts of the present case, because it is conceded that both under the old Act and under the new Act no application could have lain to the Debt Adjustment Board with respect to a transaction of 1916. If, therefore, no application could have lain to the Court under the Bombay Agricultural Debtors Relief Act, we see no reason why the plaintiff should get a right to go to that Court merely by reason of the filing of a suit in the regular Court.

(6) We think, therefore, that the answer to the question submitted for our decision by the learned District Judge is in the negative.

(7) There will be no order as to costs.

(8) Answer in the negative.


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