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Fakiraya Viraya Mathapati and ors. Vs. Achappanaik Bhimappanaik Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 218 of 1954
Judge
Reported inAIR1956Bom600
ActsLimitation Act, 1908; Debt Law; Bombay Agricultural Debtors Relief Act, 1947 - Sections 52; Bombay Agricultural Debtors Relief (Amendment) Act, 1948
AppellantFakiraya Viraya Mathapati and ors.
RespondentAchappanaik Bhimappanaik Desai and ors.
Appellant AdvocateG.P. Murdeshwar, Adv.
Respondent AdvocateK.G. Datar, Adv.
Excerpt:
- .....3 then a minor, and gangayya agreed that in full satisfaction of his decree he would take from irsangappa who is respondent 11 and one sangappa sums of rs. 4500 and rs. 500 respectively.irsangappa and sangappa agreed to this because respondent 1 sold two pieces of land to irsangappa for a sum of rs. 6500 and one piece of land to sangappa for a sum of rs. 4000, and out of the consideration of these two sate deeds the sums of rs. 4509 and rs. 500 were left with the purchasers in order to pay off the amount which gangayya had agreed to accept. the learned judge before whom execution was going on has disbelieved the story with regard to this adjustment. he held however that so far as the first instalment was concerned it was barred by time.the decree-holders relied upon the fact that an.....
Judgment:

Bavdekar, J.

1. The two appellants and their uncle one Gangayya had obtained a mortgage decree against respondents 1 to 8. The amount of the decree was payable by instalments and the first Instalment was payable on 15-4-1945, The application for execution of this decree was made on 11-1-1949 and thereupon the decree-holders were met with a contention that execution in respect of the 'first instalment was barred.

The only contention which it is necessary to state for the purpose of the present appeal is that there was an adjustment of the decree on 24-8-1944 at the intervention of panchas. Gangayya and plaintiff 2 were present, plaintiff 3 then a minor, and Gangayya agreed that in full satisfaction of his decree he would take from Irsangappa who is respondent 11 and one Sangappa sums of Rs. 4500 and Rs. 500 respectively.

Irsangappa and Sangappa agreed to this because respondent 1 sold two pieces of land to Irsangappa for a sum of Rs. 6500 and one piece of land to Sangappa for a sum of Rs. 4000, and out of the consideration of these two sate deeds the sums of Rs. 4509 and Rs. 500 were left with the purchasers in order to pay off the amount which Gangayya had agreed to accept. The learned Judge before whom execution was going on has disbelieved the story with regard to this adjustment. He held however that so far as the first instalment was concerned it was barred by time.

The decree-holders relied upon the fact that an application for adjustment of this debt was made on 8-9-1945 and was disposed of on 5-9-1947 and claimed that under Section 52, Bombay Agricultural Debtors' Relief Act, 1947 they were entitled to exclude in computing limitation for the filing of the application this period.

But the learned Judge pointed out that this section was amended by Bombay Act 70 of 1943. Prior to that the only occasion on which the time taken for application for adjustment of the debt under the Bombay Agricultural Debtors' Relief' Act, 1947 could be excluded was when it was held that a person who was alleged to be a debtor was not a debtor. It was true that at the time when the adjustment application was made Bombay Act 70 of 3048 had already come into force. But the learned Judge said that the unamended section applied and consequently the first instalment is barred by time.

2. Plaintiffs 2 and 3 have appealed from this decision and respondents 1 to 6 have filed cross objections contending that it should have been held that there was an adjustment of the decree and the application for execution should have been dismissed.

3. Now, so far as the appeal of plaintiffs 2 and 3 is concerned, it is quite true that the Act which, applies for deciding as to whether a suit or an application is in time is the Act which is in force at the time when the suit or application is filed. But to that there is an important exception. When there is an amendment if under the unamended. Act remedy has been taken away then the extension of the period of limitation by the Amending Act would not by itself revive the remedy.

The point of saying 'would not by itself revive the remedy' is that of course it is always permissible to the legislature by specifically so enacting to direct that the Amending Act would apply. But if there is nothing special in the Act by which the period of limitation for filing a suit or application is extended by an Amending Act, then unless the right to sue or the right to make an application was in existence when the Amending Act came into force the Act does not help and a remedy which is barred would not be revived.

Now, in this case under the unamended Act the appellants' application for execution was barred on 15-4-1948. The Amending Act certainly did not come into force before 30-12-1948. It was published or that date in the Bombay Government Gazette. The right was consequently barred before the amendment came into force. The amendment did not have the effect of reviving it. The appeal of plaintiffs 2 and 3 must therefore be dismissed with costs.

4. Coming next to the cross objections, the adjustment was oral. It was supposed to be a tripartite arrangement by which judgment-debtor I sold his land to Irsanagappa and Sangappa. Part of the consideration of the sale deeds was left with them. They agreed to pay Gangayya and Gangayya agreed that he would accept the amount from Irsangappa and Sangappa, Not only was there no document with regard to it in writing but respondents 1 to 6 did not examine either Irsangappa or Sangappa.

One point in mitigation of this criticism is that Irsangappa appears to have filed a written statement supporting the case of respondents 1 to 6 to some extent though he says that the only amount which was left with him for paying Gangayya was Rs. 3000. The principal points which could however be made against the alleged adjustment are two in number. The first was the one which was pointed out by the learned Judge before whom execution was going on, that is, that Gangayya had sufficient security for recovering his money.

There was no reason why he should have agreed to a reduction of 33 per cent, but a far greater objection is that there is no adequate explanation forthcoming why in case there was an adjustment it was not reduced to writing. Gangayya admittedly had got sufficient security for the recovery of his money.

It is incredible that when he had already got a decree in his favour and assurance that he would get his money by executing his decree he would let that decree go and accept instead the personal liability of Irsangappa and Sangappa. If the agreement was not reduced into writing it would have been a matter of considerable difficulty for recovery if he were upon the adjustment to seek to prove as against Irsangappa and Sangappa that they had orally agreed to pay him Rs. 5000. The story of adjustment obviously could not therefore be accepted.

The cross objections must also be dismissed with costs.

5. Order accordingly.


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