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Dattu Apparao Machale and ors. Vs. Digambar Govindrao Shendga - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 263 of 1966
Judge
Reported inAIR1968Bom361; (1968)70BOMLR86; 1968MhLJ355
ActsLimitation Act, 1908 - Schedule - Article 182; Hyderabad Agricultural Debtors Relief Act, 1956 - Sections 38; Code of Civil Procedure (CPC), 1908
AppellantDattu Apparao Machale and ors.
RespondentDigambar Govindrao Shendga
Advocates:S.B. Bhasme, Adv.
Excerpt:
.....for execution of award made under hyderabad act whether governed by article 182.;article 182 of the indian limitation act, 1908, or article 136 of the limitation act, 1963, is not applicable to an application for execution of an award made under the hyderabad agricultural debtors relief act, 1956.;muppanna v. gajanan urban go-operative bank (1946) 49 bom. l.r. 168, referred to. - - sub-section (3) (ii) makes it a duty of the court to transfer the award for execution to the collector if the court on receipt of such application is satisfied that the debtor has made default in the payment of any installment, and thereupon the collector is bound to recover the amount of the installment from the debtor as arrears of land revenue. act was a far larger one and that was to relieve the..........of a decree or order of any civil court not provided for art. 183 or by section 48 of the civil procedure code,1908. it is clear that this article can apply only to an order or decree of a civil court. if the order is not an order of a civil court. if the order is not an order of a civil court, the obviously art. 182 cannot apply. the h. a. d. r. act defines by section 2 (4) the word 'court' to mean the court of munsiff, subordinate judge, or a judge of the city civil court having ordinary jurisdiction in the area in which the debtor ordinarily resides, depending upon the monetary value of the total debts of the debtors. the word 'court' is not defined to mean the 'civil court' having monetary jurisdiction in the matter in the area where the debtor resides. it is obvious,.....
Judgment:
ORDER

(1) This is a revisional application by the judgment-debtors against the order of the H. A. D. R. Court confirmed in appeal. The short facts are that in an application for settlement of debts under the Hyderabad Agricultural Debtors Relief Act, 1956, the debt court made an award under that Act on September 4, 1957, whereby the judgment-debtors were required to make certain payments to the judgment-creditor opponent herein. This award was sent by the Court for registration and it was registered on July 4 1961. The opponent, award holder applied for the execution of the award to the Court on January 21, 1964. The judgment-debtors contended that the execution was barred because the execution was sought beyond a period of three years of the making of the award and Art. 182 of the Limitation Act, 1908, barred the application. Both the Courts below have rejected this contention.

(2) The learned trial Judge held that as it is the duty of the Court to register the award and it was registered only on July 4, 1961 and in the absence of registration it was not executable, the application filed within three years from the date of the registration was within time. The learned Judges held that the new Limitation Act, 1963, Art. 136 which prescribes a period of 12 years for execution of a decree applies.

(3) Before me it is argued by Mr. Bhasme that Art. 182 of the Limitation Act prescribed a period of three years from the date of the decree or six years if it were a registered decree. His contention that the fact that registration took so much time and it was finally registered on July 4, 1961 is not a matter of any moment and not relevant. The starting point is the date of the decree. He then says that the Courts below were wrong in applying Art. 136 of the new Limitation Act because Section 30 prevents reviving any cause or matter if it was barred by the earlier Limitation Act. In order to answer these contentions, the relevant provisions of the Hyderabad Agricultural Debtors Relief Act, which I will refer to as the said Act, need be examined. Section 38 requires that every award shall be registered as provided in Chapter III. Section 49 of the Act requires the Court to send the award to the Sub-Registrar of the sub-district in which the property, the subject-matter of the award, is situated, together with a memorandum containing such particulars as the Government may prescribe. Section 50 provides that if an appeal is filed against an award under Section 43, the Court shall send a notice regarding the institution of the appeal to the Sub-Registrar or the Registrar. Section 51 requires that if no appeal is filed after the expiry of the period provided for an appeal against an award or if an appeal is filed after the disposal of the appeal, the Registrar or Sub-Registrar shall register the award. No material was placed on record of the trial Court and of the lower appellate to disclose the reason why the registration took such a long time. There may, however, be some reasons or the other why the award came to be registered only as late as July 4, 1961.

(4) Apparently, it appears that it is only a registered award that can be executed by the Court inasmuch as the provisions of the Registration Act are made applicable. Section 38 (3) provides how an award is to be executed Sub-section (3) (i) enables the creditor to make an application in the prescribed form for execution of the award, after the debtor makes default in the payment of any installment due under the award. Sub-section (3) (ii) makes it a duty of the Court to transfer the award for execution to the Collector if the Court on receipt of such application is satisfied that the debtor has made default in the payment of any installment, and thereupon the Collector is bound to recover the amount of the installment from the debtor as arrears of land revenue.

(5) Article 182 of the Limitation Act, 1908 applies to an application for the execution of a decree or order of any civil court not provided for Art. 183 or by Section 48 of the Civil Procedure Code,1908. It is clear that this article can apply only to an order or decree of a Civil Court. If the order is not an order of a Civil Court. If the order is not an order of a Civil Court, the obviously Art. 182 cannot apply. The H. A. D. R. Act defines by Section 2 (4) the word 'Court' to mean the Court of Munsiff, Subordinate Judge, or a Judge of the City Civil Court having ordinary jurisdiction in the area in which the debtor ordinarily resides, depending upon the monetary value of the total debts of the debtors. The word 'court' is not defined to mean the 'Civil Court' having monetary jurisdiction in the matter in the area where the debtor resides. It is obvious, therefore, that the Court created under the H. A. D. R. Act is a special Court and is not a 'Civil Court' whose orders and decrees are intended to be covered by article 182 of the Limitation Act. It is also clear that what is sought to be executed is not a decree or an order as understood by Art. 182, and decrees as are made by a Civil Court either under the Civil Procedure Code or are deemed to be decrees by virtue of some provision and requiring their execution as decrees. All throughout the Act, the final said Act is termed an award and for obvious reason. The debt Court does not decide a dispute between two private parties who are litigating a private right. The purpose of the H. A. D. R. Act was a far larger one and that was to relieve the agriculturists of their indebt ness who satisfied the conditions of the Act. In order to do that, all the debts of such agriculturists had to be settled and therefore in such an application all the creditors of the debtors were or were deemed to be parties and the order operated to decide and settle once for all, all the debts of the debtor qua every creditor. It is no wonder, therefore, that the final adjudication of the Special Court is not called a decree or an order of a Court. In my view, therefore, it is impossible to hold that Article 182 in the old Limitation Act or Art. 136 in the New Limitation Act, can apply to the execution of the award. Even Section 38 of the H.A.D.R Act does not speak of the execution of this award as a decree. It is an award for all purposes and it is to be executed as an award and in the manner provided by the said Section, and not as provided by the Civil Procedure Code. I have no doubt, therefore, that the present proceeding is not barred by limitation.

(6) Mr. Bhasme referred me to a decision of a Division Bench of this Court in Muppanna Malkappa v. Shree Gajanan Urban Co-operative Bank Ltd. 49 Bom LR 168 = AIR 1947 Bom 375 which arose out of the provisions of the Bombay Co-operative Societies Act (Bombay Act 7 of 1925). The Co-operative Societies Act provides for arbitration in all matters in dispute for arbitration in all matters in dispute between the Society and its members or any of its employees. The dispute has to be settled either by a nominee of the Registrar or by the Registrar himself and the adjudication is indeed called an award. But then Section 59 (1) (a) of the Act as amended in 1943 read thus:

'59. (1) Every order passed by ................................. the Registrar or his nominees ................. under Section 54 ........................... shall if not carried out

(a) on a certificate signed by the Registrar or a liquidator, be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court: ...................................'.

The Section leaves no doubt as to what was intended by this enactment. A deeming provision creates a fiction and lays down an award is really not a decree as understood under the Civil Procedure Code and in ordinary law. It provides that it shall be deemed to be a decree. Once this deeming provision applies for all purposes the award becomes a decree and the Court, therefore, was justified in holding that Art. 182 of the old Limitation Act applied to the proceedings. This decision, in my view, has clearly no application inasmuch as in the present case there is no deeming provision creating a fiction that the award given by the Special Court shall be deemed to be a decree.

(7) Mr. Bhasme relied upon Section 47 of the H. A. D. R. Act, which provides that save as otherwise expressly provided in the Act, the provisions of the Code of Civil Procedure shall apply to all proceedings under this Chapter. In the first place, from the language it is apparent that only the procedural provisions of the Civil Procedure Code are made applicable to the proceedings and not the substantive provisions. Under the circumstances, it would be impossible to hold that the final adjudication of the Debt Adjustment Court could be said to be a decree under Section 2(2) of the Civil Procedure Code. In any event, assuming that even substantive provisions of the Civil Procedure Code may apply, this could only be 'save as otherwise expressly provided' by the Act. Inasmuch as the Act itself refuses to call that final adjudication a decree, it is impossible to hold that the definition of 'decree' can apply to the final adjudication by the Court.

(8) This case has no connection whatsoever with cases such as those where procedural orders are made by the Debt Court in a proceeding under this Act, but under the provision of the Civil Procedure Code, and which are held to be applicable, because its proceedings are governed by the Civil Procedure Code. In such cases, it is possible to say that notwithstanding the provisions of Section 43, providing for appeals against certain orders made under the Act, an appeal may also lie under the Civil Procedure Code. I am not dealing with such a case and what I have said above cannot possibly apply to any such order.

(9) In the result, the rule is discharged. As the other side does not appear, there will be no order as to costs.

(10) Application dismissed.


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