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Jankibai Abaji Pawaskar Vs. Bhikaji Raghunath Chavan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application Nos. 482 and 483 of 1956
Judge
Reported in(1957)59BOMLR610
AppellantJankibai Abaji Pawaskar
RespondentBhikaji Raghunath Chavan
DispositionApplication dismissed
Excerpt:
.....of the bombay agricultural debtors relief act, 1947, it was competent under section 47 of the civil procedure code, 1908, by virtue of section 46 of the bombay agricultural debtors relief act:- ;that the order passed by the executing court did not fall under section 47 read with section 2(2) of the civil procedure code, as the award passed by the court did not amount to a decree and the parties to the award were not parties to any suit, and that, therefore, no right of appeal lay in the petitioner.;where the civil procedure code, 1908, provides for an appeal, an order passed by the court in proceedings under the bombay agricultural debtors relief act, 1947, though it may not be covered by section 43 of the act, would still be appealable if such an order was governed by any of the..........was necessary but it found that all thesame the procedure laid down by order xxi, rule 16, of the civilprocedure code, not having been followed before issuing process inrespect of the execution of the award, notice was ordered to beissued to the debtor under order xxi, rule 16. mr. walavalkar has notchallenged the correctness of this order. as regards the secondpoint about satisfaction of the liability of jankibai, thecontention of jankibai seems to be that under both the awards shewas liable to pay rs. 2,778 only. she had paid rs. 200 in respectof the first award. she had paid rs. 550 in respect of the secondaward and the amount of rs. 2,314 was admittedly recovered by thecreditor from ramji, her brother. therefore her liability underboth the awards was completely satisfied, and.....
Judgment:

Gokhale, J.

1. These two revision applications have been preferred by theoriginal debtor, one Jankibai, against the order passed by thelearned District Judge, Ratnagiri, dismissing her two appeals onthe ground that they were not competent under the provisions ofthe Bombay Agricultural Debtors Relief Act, 1947.

2. The petitioner Jankibai was indebted to one RaghunathChavan, the father of the opponents, on a mortgage. There was anapplication for adjustment of debts, in respect of this mortgageunder the Bombay Agricultural Debtors Relief Act, 1947, (whichwill hereafter be referred to as the Act) and that resulted in anaward against Jankibai which was obtained by the creditor inB.A.D.R. Application No. 859 of 1957 on April 16, 1952. The amountof the award, which was made payable to the creditor, was Rs. 728,to be paid by yearly instalments of Rs. 100 each, the firstinstalment commencing from January 1, 1953. Two instalments of Rs.100 each were paid by the debtor, but as the subsequent instalmentwas not paid, the creditor filed Darkhast No. 1 of 1955 forrecovering the instalment of Rs. 100 which had fallen due onJanuary 1, 1955. It seems that the petitioner Jankibai and herbrother Ramji were also indebted in respect of other dealings toRaghunath Chavan and a decree was obtained by the creditor againstJankibai and her brother Ramji far the amount of Rs. 3.800. Anapplication for adjustment of that decretal amount came to befiled both against Jankibai and Ramji. But Ramji was held not tobe a debtor and only Jankibai was held to be a debtor. Theseproceedings terminated in an award against Jankibai alone whichwas passed in B.A.D.R. Application No. 860 of 1947, for the amountof Rs. 2,050, on April 16, 1952, and the amount was made payableby yearly instalments of Rs. 275 commencing from January 1, 1953.Jankibai paid two instalments in respect of this award for theyears 1953 and 1954. As the instalment for the year 1955 remainedto be paid, the creditor filed Darkhast No. 2 of 1955 for therecovery of the instalment due for 1955. It has to be mentionedthat just two days before the award was passed on April 16, 1952,in B.A.D.R. Application No. 860 of 1947, a purshis was filed onbehalf of the creditor on April 14, 1952, stating that in RegularDarkhast No. 60 of 1949 which was filed by the creditor againstRamji, brother of the petitioner, Rs. 2,402-10-1 had beenrecovered including costs amounting to Rs. 88-1-0, Rs. 2,314-9-1being towards the decretal amount. It has to be noted that inspite of this purshis by the creditor, Jankibai raised nocontention in the B.A.D.R. proceedings that she could in any waytake advantage of this payment received from Ramji with the resultthat an award came to be passed against her to the extent of Rs.2,050 as already stated above.

3. It appears that in. these two darkhasts two points wereraised on behalf of the debtor Jankibai. The first point was thatthe creditor having obtained a payment of Rs. 2,314 and odd fromRamji, the liability of Jankibai had been satisfied. The secondpoint was that the darkhasts were not competent because theoriginal creditor Raghunath having died and the darkhasts havingbeen filed by his legal representatives, the opponents herein,they could not recover the amounts under the award, they havingnot obtained a succession certificate under Section 214 of the IndianSuccession Act. I may mention that the trial Court observed thatno succession certificate was necessary but it found that all thesame the procedure laid down by Order XXI, Rule 16, of the CivilProcedure Code, not having been followed before issuing process inrespect of the execution of the award, notice was ordered to beissued to the debtor under Order XXI, Rule 16. Mr. Walavalkar has notchallenged the correctness of this order. As regards the secondpoint about satisfaction of the liability of Jankibai, thecontention of Jankibai seems to be that under both the awards shewas liable to pay Rs. 2,778 only. She had paid Rs. 200 in respectof the first award. She had paid Rs. 550 in respect of the secondaward and the amount of Rs. 2,314 was admittedly recovered by thecreditor from Ramji, her brother. Therefore her liability underboth the awards was completely satisfied, and consequently thedarkhasts were not maintainable against her. This point wasdecided against Jankibai by the trial Court.

4. Against this decision the petitioner filed two appealsbefore the District-Court at Ratnagiri, which held that the ordersin execution proceedings under an award passed under theprovisions of the Bombay Agricultural Debtors Relief Act were notappealable under Section 43 of the Act and that Mr. Walavalkar's clientcould not take advantage of the provisions of Section 47 of the CivilProcedure Code. Therefore the lower appellate Court held that theappeals were incompetent and consequently dismissed both theappeals. That is why the petitioner has filed these two civilrevision applications.

5. Mr. Walavalkar contends that the view of the lower appellateCourt that no appeal was competent is erroneous in law. In orderto examine the validity of this argument it would be necessary torefer to certain provisions of the Act. Chapter II of the Act laysdown in Sections 4 to 46 the procedure for adjustment of debts. Section43(1) sets out the cases in which appeals shall lie against anydecision, order or award of the Court under this Act. Section 46provides that save as expressly provide in the Act, theprovisions of the Code of Civil Procedure, 1908, shall apply toall proceedings under that Chapter. Mr. Walavalkar principallyrelies on Section 46 in support of his argument that though his appealis not competent under the provisions of Section 43(1) of the Act, itwould be competent under Section 47 of the Code of Civil Procedure byvirtue of Section 46 of the Act, which makes the provisions of the Codeof Civil Procedure applicable save as expressly-provided in theAct. Mr. Walavalkar also relies on the provisions of Rule 13 of theRules framed under the Act by virtue of the powers conferred onthe State Government under Section 55. Rule 13 states that in respectof any matter for which no provision is made in the Act or therules, the procedure laid down in the Code of Civil Procedureshall, so far as may be, be followed by the Court in theproceedings before it. Mr. Walavalkar has then referred to theprovisions of Section 38(3) of the Act under which the award has to beexecuted in a certain manner. The creditor has to apply in theprescribed form, which is Form No. 8, and Mr. Walavalkar concedesthat this form differs from an execution application filed underthe provisions of the Code of Civil Procedure. The application hasto be made to the Court under the Act as defined in Section 2(3).Section 38(3)(ii) provides that if the Court on receipt of suchan application is satisfied that the debtor has made default inthe payment of the instalment, the Court shall transfer the awardfor execution to the Collector, and thereupon the Collector shallrecover the amount of the instalment from the debtor as arrears ofland revenue. Therefore, argues Mr. Walavalkar, the Court has tosatisfy itself whether the debtor has made a default in thepayment of the instalment, and that would include the questionwhether there has been a satisfaction of the award as contended bythe present petitioner. Mr. Walavalkar frankly concedes that hisappeal would not come under any of the provisions of Section 43(1) ofthe Act. But he submits that since the provisions of the Code ofCivil Procedure have been made applicable and since there isnothing to the contrary provided under the Act, the questionwhether his client has satisfied the award decree would be aquestion that would be governed by the provisions of Section 47 of theCode of Civil Procedure. Mr. Walavalkar further argues that thedecision of the trial Court negativing his contention that the twoawards had been satisfied is a formal expression of anadjudication in so far as that Court is concerned conclusivelydetermining the rights of the parties and therefore that orderwould amount to a decree under the provisions of Section 2(2) of theCode of Civil Procedure.

6. This argument, as presented by Mr. Walavalkar, appears to beattractive, but the initial difficulty in the way of Mr.Walavalkar's client is that under Section 47 of the Code of CivilProcedure what are contemplated are questions arising between theparties to the suit in which the decree was passed and relating tothe execution, discharge or satisfaction of the decree. Now, itcannot be held in the first instance that the parties to thesedarkhasts were parties to any suit. Nor can the awards passedagainst the petitioner be regarded as decrees. Prime facie,therefore, Section 47 of the Civil Procedure Code would not apply.Section 38 of the Act on which Mr. Walavalkar relied itself showsthat the award is not executable under the provisions of the Codeof Civil Procedure. The form prescribed is different from the formof an execution petition under the Code of Civil Procedure. Theapplication for execution has to be presented to the Court underthe Act and c). (iii) of Section 38(3) of the Act would show that wherethe award contains an order for the delivery of possession of anyproperty under Clause (v) of Sub-section (2) of Section 32, such order forpossession has to be executed by the Court as if it were a decreepassed by it. Therefore it would appear that the Legislatureintended that it was only where the award contained an order fordelivery of possession that that order was to be executed as if itwere a decree. So far as payment of money under the award isconcerned, the Legislature has not provided for its execution as adecree. It cannot also be contended that the decision of the trialCourt in the present case conclusively determines the rights ofthe parties with regard to any matter in controversy in any suitso as to attract the application of Section 2(2) of the Civil ProcedureCode.

7. In support of his contention that the order passed by thetrial Court would come under Section 47 of the Code of Civil Procedure,Mr. Walavalkar relied on an unreported decision, of this Court inShah Amratlal Lallubhai v. Dahyabhai Vishram Suthar (1950) CivilRevision Application No. 929 of 1949, decided by Dixit J., onJanuary 23, 1950 (Unrep.). There Mr. Justice Dixit took the viewthat the provisions of Section 43 of the Act were not exhaustive. Inthat case the Court under the Act had issued a temporaryinjunction restraining one of the parties from disturbing thepossession of the other. The provisions of the Act do notcontemplate the issue of an injunction. The injunction could onlyissue under the provisions of the Code of Civil Procedure, andsince an order issuing an injunction is an appealable order under Order XLIII, Rule 1(r), of the Code, it was held that an appeal lay tothe District Court against such an order though that order was notappealable under the provisions of Section 43 of the Act. This decisionwas approved by a Division Bench of this Court in Vishnu NarharBhide v. Abu w/o Gulam Husein Mahatye (1952) Civil RevisionApplication No. 490 of 1951, decided by Rajadhyaksha and Vyas JJ.,on March 25, 1952 (Unrep.). In my opinion, the facts of thepresent case are distinguishable from the facts of those twounreported rulings. Where the Code of Civil Procedure provides foran appeal, an order passed by the Court in proceedings under theAct, though it may not be covered by Section 43 of the Act, would stillbe appealable if such an order was, governed by any of theprovisions of the Code of Civil Procedure. In the case decided byDixit J. the order of injunction was passed by the Court under theprovisions of the Code of Civil Procedure and, therefore, thatorder was held to be appealable by virtue of the provisions of OrderXLIII, Rule 1(r). In the other case decided by Rajadhyaksha and VyasJJ., the application filed by the creditor for adjustment of debtswas itself dismissed as being time-barred by the trial Court. TheDistrict Court set aside that decision in appeal and in revision,before this Court, the competency of the appeal to the DistrictCourt was itself challenged and this Court held, following theratio of the earlier decision, that the appeal was competentinasmuch as the trial Court's order rejecting the application astime-barred stood on the same footing as an order of rejection ofa plaint as being time-barred, against which an appeal wasprovided under Order VII, Rule 11, read with Section 2(2) of the CivilProcedure Code. In the present case the proceedings which werestarted by the creditor have already terminated in two awardsagainst the present petitioner and the Court decided in thedarkhasts filed to execute the awards that satisfaction as pleadedby the debtor was not proved. This order, it is conceded, wouldnot fall under any of the provisions of Section 43 of the Act, and itwould be difficult to hold that such an order would fall under theprovisions of Section 47 read with Section 2(2) of the Code of CivilProcedure, as the award passed by the Court does not amount to adecree, and the parties to the award are not parties to anysuit.

8. Mr. Abhyankar, for the opponents, contends that evenassuming that the awards passed against Jankibai, the presentpetitioner, were decrees, the petitioner is not entitled to raisethe point about satisfaction as that point was not taken by thepetitioner before the awards were passed against her. As I havealready stated in the earlier part of this judgment, a purshis wasfiled on behalf of the creditor, which is exh. 68 on the record,on April 14, 1952, acknowledging payment of Es. 2,402-10-1 fromRamji who had been held to be a non-debtor. Mr. Walavalkar'scontention on the point of satisfaction is that his client wasentitled to derive a benefit from this payment made by Ramji, whois the brother of the present petitioner. If that was so, then inmy opinion it was incumbent on the petitioner to raise this pointunder Section 22(5) of the Act, before the awards came to be passedagainst her on April 16, 1952. That being so, Mr. Abhyankar'scontention that her present contention would be barred by theprinciples of res juclicata must be upheld.

9. Besides, as award decrees had been passed against thepetitioner, the executing Court would not be competent torecognise any payment that may have been made by the debtor or byany one on her behalf before the passing of the awards. Therefore,the further contention of Mr. Abhyankar that no question ofsatisfaction of the award arises at all and Section 47 of the CivilProcedure Code would not be applicable would also seem to becorrect. In my opinion, therefore, the view of the trial Courtthat there was no satisfaction of the liability of the petitioneras alleged by her would be justified and it would not be necessaryto interfere in revision even assuming that appeals were competentto the District Court.

10. I may mention that no prejudice would seem to have beencaused to Mr. Walavalkar's client. The two awards were passedagainst her on the basis that she was a debtor. So far as theaward in application No. 859 of 1947 is concerned, there was aliability against her of Rs. 728 out of which she has paid anamount of Rs. 200 representing two instalments. That was an awardon a mortgage. So far as the second award in Application No. 860of 1947 is concerned, her liability was of Rs. 2,050 out of whichshe paid Rs. 550 representing two instalments. So far as thedecree obtained by the creditor against the petitioner and Ramjiwas concerned, there was a joint and several responsibility of Rs.3,800. Ramji having been held to be a non-debtor, he wasresponsible for the payment of the entire amount of Rs. 3,800, outof which he paid, as acknowledged by the creditor, an amount ofRs. 2,314 plus costs. Jankibai, the present petitioner, havingbeen held to be a debtor, she got an advantage of having her debtsscaled and an award for an amount of Rs. 2,050 came to be passedagainst her. But, as observed by the trial Court, in no case wouldthe creditor be entitled to recover from both the judgment-debtorstogether more than the decretal amount. As Ramji has already paid Rs. 2,314, both the judgment-debtors, namely, Jankibai as well asRamji, would be liable to pay only the balance of the. decretalamount. Even, on that basis, therefore, the liability of thepresent petitioner would not be to the entire extent of the amountof the award passed against her. That position has not beenchallenged by Mr. Abhyankar.

11. The result is that both the revision applications fail andthe rules are discharged with costs.


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