1. The short point which arises in this revisional application is whether the application made by the petitioners to set aside an ex parte order was competent. The application has in terms been made under Order 9, Rule 13. Both the Courts have held that the application as framed was incompetent. It is this finding which is challenged before me by Mr. Paranjape on behalf of the petitioners.
2. This application arises from debt adjustment proceedings. The petitioners are creditors. On 24-2-1927 the transaction in question took place, The purchaser was Gulabchand and the petitioners are subsequent purchasers of the property. When an application was made by the debtors for adjustment of their debts, it was set down for hearing in the ordinary course.
The preliminary issues were tried, the debtors were found to be debtors entitled to ask for adjustment, and under Section 24 the matter was set down for hearing again for determining the nature of the transaction. On this date the creditors were absent and the learned Judge held on the evidence produced before him that the transaction was a mortgage.
The creditors then applied for setting aside the ex parte decision and for restoring the application to file to be dealt with in accordance With law. This application they purported to make under Order 9, Rule 13. The learned Judge below have held that the only section under which such an application could have been made in Section 36 of the B.A.D.R. Act.
Mr. Paranjape contends that this view is erroneous and in support of his argument Mr. Paranjape has urged before me a somewhat ingenious argument. He contends that the determination of the nature of the transaction under Section 24 really amounts to a preliminary decree, and if it is a preliminary decree -- that is the argument -- Order 9, Rule 13, would apply, I am unable to accept this contention.
It has been held by this Court that a finding made under Section 17 (1) of the B.A.D.R. Act is appealable and it has also been held that failure of a party to make an appeal against a finding recorded under Section 17(1) does not preclude him from challenging the correctness of the said finding in an appeal against the final award.
In other words, the prohibition laid down by the provisions of Section 105 of the Civil P. C. cannot be involved against a party while dealing with appeals against awards under the B.A.D.R, Act (vide Chatrappa Tippanna v. Dasgirsaheb, : AIR1952Bom80 . Mr. Paranjape argues that in this case Rajadhaykshaha and Dixit JJ. were concerned with a finding recorded under Section 17(1) and they were not called upon to consider what the effect of the failure of the party to make an appeal against a finding under Section 24 would be.
It is true that the Court in Chatrappa's case (A) was dealing with a finding made under Section 17 (1) But the argument that a finding as to the nature of the transaction amounts to a preliminary decree is, in my opinion, unsound on the lace of it.
In order to make this argument plausible. Mr. Paranjape has to assume that in the proceedings for adjustment of debts there_ are two different proceedings really mixed up in one and he suggests that as soon as it is found that the transaction is a mortgage that part of the controversy between the parties is finally decided by the Court making its finding under Section 24 and therefore the finding should amount to a preliminary decree under Section 2(2) of the Civil P. C.
The claim for adjustment of debts proceeds on the assumption that the transaction is a mortgage, and if the proceeding taken by the debtor is treated as a proceeding on mortgage, a preliminary decree will have to be decided on some other points as well. The amount due will have to be determined because the amount due from the mortgagor to the mortgagee is always determined by a preliminary decree.
That has not been done and cannot be done under Section 24. Therefore I am not impressed by the argument that the finding made by the learned Judge that the transaction is a mortgage amounts to a preliminary decree. If the finding under Section 24 is not a preliminary decree, then the question as to whether in respect of such a preliminary decree made under the B.A.D.R. Act the provisions of Order 9, Rule 13, can be invoked need not be considered.
3. Mr. Paranjape then invited me to consider the matter in substance and to allow him to treat his application as one made under Section 36 of the B.A.D.R. Act. I might have considered this request more favourably but for the fact that the learned Pleader for the petitioner expressly stated by a purshis that he wanted the application to be dealt with as one made under Order 9, Rule 13 and he requested the Court to try the issue before the court on the competence of the application on that basis.
It is because of this purshis that the learned District Judge hold that the petitioners were precluded subsequently from alleging that their application should be considered as one made under Section 36 of the B.A.D.R. Act. Therefore, I must hold that the courts below were right in coming to the conclusion that the application as made Was incompetent.
4. In the result, the revisional application fails and the rule is discharged with costs.
5. Application dismissed.