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Allemeeya Daud Saheb Dhanse Vs. Hari Mahadeo Wagle - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 321 of 1954
Judge
Reported in(1956)58BOMLR641
AppellantAllemeeya Daud Saheb Dhanse
RespondentHari Mahadeo Wagle
DispositionAppeal dismissed
Excerpt:
.....period of limitation to deduct the period during which, the proceedings were pending before the debt adjustment court for adjustment of the debt (i.e. october 31, 1945 to february 24, 1951) and also the time occupied during the determination of the application made by the defendant for setting aside the ex parte order upon the application made by the plaintiff (i.e. march 15, 1951 to november 13, 1951):-;that under section 52 of the bombay agricultural debtors relief act, 1947, the time between october 31, 1945, and february 24, 1951, must be deducted in computing the period of limitation for filing the application of january 4, 1952, that as regards the period (between march 15, 1951 and november 13, 1951) taken for disposal of the application of the defendant for setting aside the..........for execution to deduct the period during which the proceedings were pending before the debt adjustment court for adjustment of the debt and also the time occupied during the determination of the application made by the appellant for setting aside the ex parte order upon the application made by the respondent. this contention of his has been accepted by the learned appellate judge who has held that the application for execution of january 4, 1952, was in time, and the judgment-debtor has appealed.2. now, the question which falls for determination is with regard to the interpretation of sections 51aand 52 of the bombay agricultural debtors relief act. the original application was under the 1939 act and it is common ground that that application is under the provisions of the act.....
Judgment:

Bavdekar, J.

1. The respondent in the present appeal had obtained a decree for money payable by nine instalments against the appellant. The decree provided that if there was a default in paying two instalments, the respondent was entitled to execute the decree for the whole amount. The instalments for the years 1936, 1937 and 1938 were not paid, whereupon on December 9, 1938, the respondent made an application for execution of the whole amount due upon the decree relying upon the default clause. That darkhast was disposed of on September 11, 1939, and the next darkhast which was filed by the respondent on July 8, 1940, was disposed of on August 20, 1940. Within three years from that date the appellant paid Rs. 5 out of Court and endorsed the decree under his own signature in respect of the payment of that amount and consequently July 30, 1943, became a fresh point of limitation for the purpose of filing a fresh darkhast. In the meanwhile, however, inasmuch as the Bombay Agricultural Debtors Relief Act, 1939, came into force in the area in which the debtor resided, the creditor made an application under that Act for adjustment of the debts, and this application was disposed of on February 24 1951. The judgment-debtor was absent and in hisabsence the Court held that he was not a debtor so that the respondent became entitled to make an application for execution of the decree. On March 15, 1951, however, the appellant made an application forsetting aside the order passed behind his back in the application for adjustment of debts. This application dismissed on November 13 1951 and the respondent filed 'a fresh application for execution onJanuary 4, 1952. He contended that he was entitled while computing the period of limitation for filing a fresh application for execution to deduct the period during which the proceedings were pending before the Debt Adjustment Court for adjustment of the debt and also the time occupied during the determination of the application made by the appellant for setting aside the ex parte order upon the application made by the respondent. This contention of his has been accepted by the learned appellate Judge who has held that the application for execution of January 4, 1952, was in time, and the judgment-debtor has appealed.

2. Now, the question which falls for determination is with regard to the interpretation of Sections 51Aand 52 of the Bombay Agricultural Debtors Relief Act. The original application was under the 1939 Act and it is common ground that that application is under the provisions of the Act of 1947 to be treated as an application for adjustment of debts under the Act. In that case, it is obvious-in the first instance that the time between October 31, 1945, and February 24, 1951, must be deducted in computing the period of limitation for filing the application of January 4, 1952. Whether the time taken for the disposal of the application of the appellant for setting aside the ex parte order passed upon that application can or cannot be deducted in computing the same period depends upon the question whether during that period the respondent could have made an application for execution of the decree, notwithstanding the provisions of Section 51A, and if he could not do it, whether the time could not be-excluded under the provisions of Section 52 in computing the period of limitation.

3. Now, under Section 51A, Sub-Clause (i), no civil Court shall entertain or proceed with any proceeding in respect of (i) any matter pending before the Court under this Act... It is common ground that there was a matter pending before the Court when the judgment-debtor made an application for setting aside the ex parte order passed upon the creditor's application for adjustment of debts. It is said however that the matter was not pending before the Court under that Act. Now, the application for setting aside the ex parte order was made under the provisions of the Code of Civil Procedure which is made applicable by the Bombay Agricultural Debtors Relief Act, 1947, to theproceedings before the Debt (Adjustment Court. It is because the Code is made applicable that the appellant could make an application for setting aside the ex parte order passed upon the creditor's application for adjustment of debts. That does not however seem to mean that the application was not an application under the Act. The Act had after all to make provision with regard to the procedure for proceedings under the Act. Instead of separately providing for the procedure to be followed by the Courts it provided that the Code of Civil Procedure would be applicable. The effect was exactly the same as if the provisions of the Code of Civil Procedure with regard to setting aside of the ex parte orders passed upon the applications made under the Act were embodied in the Act itself. It has got to be remembered that when provisions had to be made with regard to so many things it was difficult to employ very accurate language. Even if we look at Section 51A itself it refers to a suit or an application for execution for recovery of a debt as a suit or proceeding in respect of any matter pending before the Court under the Act. What would ordinarily be pending before the Court is an application for adjustment of debts, and the suit or an application for execution for recovery of the debt would not be in respect of an adjustment. It would be in respect of the debt. Even so the suit or proceeding is referred to as a suit or proceeding in respect of any matter pending before the Court. In interpreting therefore the words 'any matter pending before the Court under thisAct it is necessary to take into consideration the difficulty of using accurate language. In any case wide language has been used and the words 'Pending under the Act' are wide enough to include an application made under a different provision, viz. one in the Code of Civil Procedure, when that provision was itself made applicable under the Act to be followed in all proceedings under the Act. In the second instance, it has got to be remembered that if one were to hold that during the time when an application for setting aside an ex parte order upon an application for adjustment of debts is pending there is jurisdiction in the Court to entertain or proceed with an application for recovery of a debt, the creditor could file an application for execution and the debtor would be compelled to ask either one or the other Court, namely, the Debt Adjustment Court or the Court before which the application for execution is going on, for an order restraining the creditor from executing the decree or staying the application for execution as the case may be. In my view therefore the words any matter pending before the Court under the Act in Clause (1) of Section 51A include the application for setting aside the ex parte order upon the application for execution of a debt.

4. In that case the words in Section 52 'proceedings in respect of such debt' would necessarily have to be interpreted to mean the proceedings for restoration of an application adjustment of debts which has been dismissed for default in the absence of the debtor or anex-parte order upon the application for adjustment of the debts made by the creditor 'that the debtor was not a debtor within the meaning of the Act and the debt could not consequently be adjusted. It is true that the words which are used in Section 52 require proceedings in respect of such a debt. Now, proceedings for the adjustment of debts are proceedings in respect of such debt. It is said, however that theproducing for either restoration of an application for adjustment of debts or for setting aside the ex parte order against a debtor upon such an application are not proceedings in respect of such a debt. But the words inrespect of are very wide. They only require that connection should be established between theproceeding and the debt. The 'words by themselves do not require that the connection should be immediate. It could be remote and when the words are capable of having both the meanings, it is obvious that that meaning should be given to it which would further the purpose of the Act. That purpose undoubtedly was that as long as there is a matter before the Debt Adjustment Court with regard to the adjustment of the debts the civil Courts should stay their hands. They should proceed with a suit in respect of a debt from a person alleged to be a debtor under the Act or an application for execution of a debt only after the Debt Adjustment Court had so to speak finally decided an application for adjustment of debts which was pending before it.

5. The learned appellate Judge was, therefore, quite right in holding that the application for execution of January 4, 1952 was in time. The appeal must be dismissed with costs.


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