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Jaisingh and ors. Vs. Ganpatbapu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 183 of 1972
Judge
Reported inAIR1976Bom75; 1975MhLJ743
ActsMaharashtra (Vidarbha Region) Agricultural Debtors Relief Act, 1969 - Sections 2, 3, 20 and 21; Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956 - Sections 3(1)
AppellantJaisingh and ors.
RespondentGanpatbapu
Appellant AdvocateG.J. Ghate, Adv.
Respondent AdvocateT.L. Shankar, Adv.
Excerpt:
.....a debtor is not satisfied, but when an application is given by an agriculturist contending that the transaction is in the nature of a mortgage .the application is tenable under the 1969 act cannot be..........regarding the maintainability of a proceeding under the maharashtra (vidarbha region) agricultural debtors relief act, 1969. the original re- ion petitioner raghunathsingh whose have been brought on record had no presented an application to the civil judge, senior division, nagpur for adjudication that the transfer dated 24-6-1950 was a mortgage and for ancillary rejected. the application was titled as an application under section 3 read with section 20 of the maharashtra (vidarbha region) agricultural debtors relief ordinance 1969 which was subsequently turn into the a act referred to above.2. according to the petitioner, were was surrounding circumstances connected with the transaction, such as the accompanying agreements to recover the property which show that the transaction which.....
Judgment:
ORDER

1. This revision application a question regarding the maintainability of a proceeding under the Maharashtra (Vidarbha Region) Agricultural Debtors Relief Act, 1969. The original re- ion petitioner Raghunathsingh whose have been brought on record had no presented an application to the civil Judge, Senior Division, Nagpur for adjudication that the transfer dated 24-6-1950 was a mortgage and for ancillary rejected. The application was titled as an application under Section 3 read with Section 20 of the Maharashtra (Vidarbha Region) Agricultural Debtors Relief Ordinance 1969 which was subsequently turn into the a Act referred to above.

2. According to the petitioner, were was surrounding circumstances connected with the transaction, such as the accompanying agreements to recover the property which show that the transaction which purported to be out and out sale as in fact a mortgage.

3. This application was opposed by an non-applicant-creditor, inter alia, on the ground that the same was not maintainable under the Maharashtra (Vidarbha Region) Agricultural Debtors Relief Act, 1969, Mr. M.R Deshpande, the then Joint Civil Judge, Senior Division , Nagpur negatived objection and held that the petition was maintainable . The appeal preferred against that order was allowed to Mr. A.D. Tated, Second Extra Assistant Judge, who held that the applicant was not a debtor as defined by the Act.

4.. Whenever an application is even under the Maharashtra (Vidarbha Region) Agricultural Debtors Relief Act, 169, Section 15 makes it incumbent to same preliminary issues, for finding out whether the person for the adjustment of those debts the application has been made is a debtor and whether the creditor or creditors are holding a valid decree not only to cases where the applicant debtor or a creditor. The main question controversy is the status of the Divisional petitioner to present the application of the dispute falling under Section 20 of the Act and since that section starts with the non obstante clause

'Notwithstanding anything to the contrary contained in any law, custom or contract'. it was argued that original petitioner who was an agriculturist and claimed to be a debtor could agitate his claim under the Act of 1969. The contention does not appear to be sound.

5. The preamble of the Act would show that it was enacted for the relief of 'certain agricultural debtors.' In other words, the person claiming the relief should not only be a debtor, but must be an agricultural debtor. About this there is no dispute here. But it is not that every agricultural debtor could get the relief under the Act , but only certain agricultural debtors are entitled for benefit under the Act. This would naturally lead us to the in built provisions of the Act for findings out who is such a debtor. Section 2 of the Act gives definitions of the words 'creditors 'debtors ', decree etc. It starts with the clause unless the context otherwise requires' thus making a saving provision if any other interpretation is necessary by observing the context Plainly read, creditor means the holder of a decree. Debt means any liability payable by a debtor under or in relation to any decree. Emphasis should be laid on the words showing that the liability arises on a decree. Debtor is defined as -a person (including an undivided Hindu family) who is a judgment-debtor or defendant against whom all proceedings of the nature referred to in sub-section. (1) of Section 3 of the Madhya Pradesh act have been stayed. The Madhya Pradesh Act is also further defined as showing the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956. It would thus be clear that the main object of the Madhya Pradesh Act was to postpone execution of decrees, and therefore, obviously it applied to the cases where the decrees were already existing.

6. Analysing further the definition of debtor it is clear he must be either a judgment-debtor or a defendant as described in the definition. In our case, the original petitioner was admittedly not a judgment-debtor. It does appear from the averments in the petition that he had filed Civil Suit No. 16 of 1968 for redemption. In that sense, he was plaintiff in a suit where the same question was agitated. But , obviously, therefore, he does not satisfy the requirement of being a defendant, much less a defendant as indicated in the Madhya Pradesh Temporary Postponement of Execution of Decrees Act. 1956 Reference is made to sub-section (1) of Section 3 of that Act. That sub-section speaks of stay of proceeding in the case of certain decrees. Here again, therefore , the primary requirement is the passing of decree and the sub-section provides for the agriculturist as defined under the Act obtaining on an application a stay order if the proceedings related to execution of a decree for money or for making final any preliminary decree for foreclosure or sale or in execution of any final decree for sale passed by a Civil Court on the basis of a liability incurred before that act came into force. There is no dispute that the original petitioner had not obtained any such stay, nor did he fall in the category of persons referred to in sub-section (1) of Section 3 of the 1956 Act.

7. If that is so, on the primary consideration the petitioner is not entitled to give any application under Section 3 of the Maharashtra (Vidarbha Region) Agricultural Debtors Relief Act, 1969, Section 3 of that Act read as follows:

' 3 (1) Any debtor or his creditor may, subject to the provisions of this Act, make an application before the 1st day of October 1969 to the Court for adjustment of the debts of the debtor.

(2) Every application shall be made in writing in the prescribed form and shall be signed, verified and presented, in the prescribed manner, and shall be accompanied by a copy of the decree and a statement showing the amount paid , if any, in relation to such decree'.

8. Reading of this section which provides for making an application for adjustment of debts would show that the person must be a debtor or a creditor as defined earlier and whenever any such application is to be made, it ought to be in the prescribed form and it has to be accompanied with a copy of the decree. Now the present petitioner could not file any copy of the decree. Therefore, the section would be inapplicable in both its requirements either on the satisfaction of the definition of the debtor or on the satisfaction of the requirement of giving any copy of the decree at the time of filing the application.

9. Nevertheless it is said by Mr. Ghate for the revision petitioners that the application was proper application which ought to have been decided by the Court below under the 1969 Act. For this purpose he says that Sec 20 is the main section. There have been allegations that the transaction was, in reality , a mortgage and the same allegations were made by a debtor. He seeks get out of the rigour of the definitions given in Section 2 by saying that the context requires that the word 'debtors should be understood otherwise than as given in the definition in its plain meaning. He contended that he is alive to the main Act having been put on the Statute for the relief of certain agricultural debtors only, but he insists that the original petitioner falls in the class of those certain debtors.

10 For this purpose, he scanned the entire Act and he more particularly, relies upon Section 12,20 and 21/ So far as Section 12 is concerned, it relates to service of notice. In case an application is given by a debtor, service is to be made on the creditor,; indicated in the application, it is argued that such a creditor would not necessarily be a creditor as defined in Section 2 and yet he will have to be served. Thus showing a deviation from the definition as given in Section 2 he says that correspondingly while interpreting Section 20, there could be a deviation. The argument cannot be appreciated. It does appear that an opponent creditor need not be a creditor as defined in Section 2 but Section 2 read with Section 3 speaks of a creditor who has to give an application. The Characteristics or the qualifications of a non-applicant opponent party could not be utilised for finding out the qualifications or a characteristics of an applicant, and in our case, a debtor-applicant , relying upon the analogy of a creditor -opponent.

11 Section 20 and 21 appear to be having two purposes. 'The main aim and object of Section 20 is to decided the real nature of the transaction when a claim is made that it is a mortgage. The other requirements embodied in the two sections show that in so doing, anything contained contrary to any law, custom or contract has to be ignored. There is also saying that this facility would not be applicable where the transfer is already adjudged as other than a mortgage and where a bona fide transferee has his rights. According to Mr. Ghate because of these provisions, authority is given to a Judge to adjudge any transaction at the hands of a debtor to be a mortgage. Herein he interprets the word 'debtors' as a person claiming to be a debtor. He is only subject to certain limitation of his being an agricultural debtor, because that is so provided in the preamble. I am afraid that interpretation cannot be accepted, more so when Section 20 is not only enacted within the framework of 1969 Act, but there are express words showing when the powers under Section 20 are to be utilised and they are by clause during the course of hearing of an application made under Section.3'. Therefore, anything that is to be done under Section 20 shall have to be done in respect of an allegation found in an application made under Section 3 so that the existence of an application under Section 3 will be a sine qua non for the attraction of Section 20. It cannot be as if that any application is made where the transaction is challenged and the point regarding the nature of transfer is determined. That could happen only if an application under Section 2 exists and such an application can exist only if the requirements of Section 3 are satisfied. That is to say, there is an application given by a person failing under the definitions given by Section 2 of the Act. No question of the term being understood some other way on the context comes for interpretation while determining the nature and extent of Section 20.

12. On the contrary a bare reading of Sections 15,16 and 17 would show that all the provisions of the Act are applicable only when a valid application under Section 3 of the 1969 Act exists.

13. In view of it the contention raised on behalf of the revision petitioners that even if the definition of a debtor is not satisfied, but when an application is given by an agriculturist contending that the transaction is in the nature of a mortgage ., the application is tenable under the 1969 Act cannot be upheld. Therefore, the revision application will have to be dismissed.

14. Hence the rule is discharged. Revision application is dismissed with costs.

15. Rule discharged.


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