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Ramanbhai Trikamlal Vs. Vaghri Vaghabhai Oghabhai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Appln. No. 1408 of 1971
Judge
Reported inAIR1979Guj149; (1979)0GLR268
ActsBombay Agricultural Debtors Relief Act, 1947 - Sections 2(1), 2(3), 32, 38(3) and 51-A; Limitation Act, 1963 - Sections 30 - Schedule - Articles 136 and 182; Code of Civil Procedure (CPC), 1908
AppellantRamanbhai Trikamlal
RespondentVaghri Vaghabhai Oghabhai and anr.
Appellant Advocate M.B. Shah, Adv.; J.V. Desai, Adv.
Respondent Advocate S.K. Zaveri, Adv.
Cases ReferredZabuben v. Mansukhlal
Excerpt:
limitation - period of limitation - limitation act, 1908 and section 30 of limitation act, 1963 - section 30 (a) enacted to prevent hardship when period of limitation under new act is shorter than old act - section 30 applicable when limitation prescribed under old act not lapsed and suit barred by applicability of new act. - - 525/-,was to be paid on vaisakh sudi 2 of sanivat year 2014. it was also directed by that award that the judgment-debtor had to pay interest at the rate of four per cent per annum on the amount of rs .8900/- and the interest was to be paid along with the last instalment which was to be paid in samvat year 2014. converted into the gregorian calendar dates, the first instalment was to be paid in or about may 1952 and the last instalment was to be paid in or.....b.j. divan, c.j. 1. the question that has been referred to this full bench is as follows:-'whether the ratio of the decision of the full bench of this court in civil revn. appln. no. 517 of 1972 decided on 27-1-1977 (since reported as zabuben devji v.. mansukhlal bhagwandas : air1978guj36 is affected by the decision of the supreme court in : [1977]1scr996 (kerala state electricity board v. t. p. kunhaliumma))? the facts giving rise to this special civil application may be shortly stated: these proceedings arise out of an execution application filed for the execution of an award in bombay agricultural debtors' relief act application no. 2832 of 1949. this award was made on july 19, 1951. under the award, the judgment-debtor had to pay an aggregate amount of rupees 3651/- by seven yearly.....
Judgment:

B.J. Divan, C.J.

1. The question that has been referred to this Full Bench is as follows:-

'Whether the ratio of the decision of the Full Bench of this Court in Civil Revn. Appln. No. 517 of 1972 decided on 27-1-1977 (since reported as Zabuben Devji v.. Mansukhlal Bhagwandas : AIR1978Guj36 is affected by the decision of the Supreme Court in : [1977]1SCR996 (Kerala State Electricity Board v. T. P. Kunhaliumma))? The facts giving rise to this special civil application may be shortly stated: These proceedings arise out of an execution application filed for the execution of an award in Bombay Agricultural Debtors' Relief Act Application No. 2832 of 1949. This award was made on July 19, 1951. Under the award, the judgment-debtor had to pay an aggregate amount of Rupees 3651/- by seven yearly instalments of Rs. 525/- each. The first instalment was to be paid on or before Vaisakh Sudi 2, Sainvat Year 2008, and the subsequent instalments were to be paid on Vaisakh Sudi 2 of every year thereafter. The last instalment, which was to be less than Rs. 525/-, was to be paid on Vaisakh Sudi 2 of Sanivat Year 2014. It was also directed by that award that the judgment-debtor had to pay interest at the rate of four per cent per annum on the amount of Rs . 8900/- and the interest was to be paid along with the last instalment which was to be paid in Samvat Year 2014. Converted into the Gregorian calendar dates, the first instalment was to be paid in or about May 1952 and the last instalment was to be paid in or about May 1958. There was a default clause in the award to the effect that, if the debtors failed to pay any instalment, then, the judgment-creditors would be entitled to recover the whole amount with interest and they could recover the same from the fields of the opponents which were subjected to a charge by the terms of the award. It appears that on April 26, 1952 the award was registered as required by the provisions of the Bombay Agricultural Debtors' Relief Act. The first three instalments appear to have been paid. Though the instalments were in arrears and were not paid on due dates, the creditors did not exercise the option to apply for execution of the entire remaining amount. The execution application out of which this special civil application arises was filed by the judgment-creditors on June 15, 1964 to recover the last four unpaid instalments. On December 30, 1963, an agreement, which was Exhibit 5 on the record of the case, was entered into in the execution proceedings which had been initiated in 1954; under the consent terms it was agreed that the unpaid instalments should be paid on or before Chaitra Sudi 2, Samvat Year 2020, that is, some time in March 1964. On January 31, 19', the earlier Darkhast, being B.A.D.R. Darkhast No. 177 of 1954, was disposed of and thereafter, since the agreement was not carried out, on June 15, 1964, the present execution application was filed. The principal question which arises for determination in this case is whether the application for execution having been filed in 1964 was barred by limitation at the time it was, filed. The Full Bench of this High Court in Zabuben Devji v. Mansukhlal : AIR1978Guj36 had held that an award made by a Court set up under the Bombay Agricultural Debtor's Relief Act or under any of the provisions of did Act was not a decree. It was further held by the Full Bench that an application for execution of the award would not be governed by Art. 182 of the Indian Limitation Act, 1908 because Art. 182 only applied to the execution of a decree made by a Civil Court. It was further held that the provisions of Art. 182 of the Indian Limitation Act, 1908 were not attracted. Article 181 of the Indian Limitation Act would not apply to an application for execution of an award because that Article in its application was confined to applications under the Code of Civil Procedure in respect of which no other provision was made in the Schedule to the Indian Limitation Act, 1908, and it was finally held that no Article of the Limitation Ad, 1963 would apply to an application for execution of an award made under the B.A.D.R. Act.

2. If the decision in Zabuben v. Mansuklal : AIR1978Guj36 (supra) is still good law after the decision of the Supreme Court in Kerala State Electricity Board v. T. P. Kunhaliunima : [1977]1SCR996 then Obviously it must be held that the execution application filed on June 15, 1964 was not barred by limitation.

3. In order to understand the contentions arising in this case, it is necessary to, refer to some of the provisions of the Bombay Agricultural Debtors' Relief Act, 1947 and some of the provisions of the Indian Limitation Act, 1908 and the Limitation Act 1963. The Bombay Agricultural Debtors' Relief Act, hereafter called the B.A.D.R. Act, was enacted because the legislature thought it expedient to consolidate and amend the law for the relief of agricultural debtors in the State of Bombay and for certain other purposes specified In the Act. Under S. 2, sub-section (3) of the B.A.D.L. Act, 'Court' means the Court of the Civil Judge (Sr. Division), having ordinary, jurisdiction in the area where the debtor ordinarily resides and if there is no, such Civil Judge, the Court of the Civil Judge, (Junior Division) having such Jurisdiction and includes, any, Court to which an application may be referred for disposal under S. 13A.Under Section 2, sub-me. (1), 'Award', means an award made under sub-section (4) of S. 8 Or S. 9, 32 or 33 or as confirmed or modified by the Court in appeal. Section 32 of the B.A.D.P. Act makes provision for the passing of an award and the award has to be passed by the Court after determining the amount of debts scaled down in the manner provided-in Section 31, and after scaling down the debts, save as otherwise provided in Section 33, the Court has to make the award. The award is to be in the prescribed form and is to be drawn up in the manner laid down in S. 32, sub-section (2). Section 38 of the B.A.D.R. Act provides that every award made under the Act, if it is in respect of debts charged on the properties of the debtor, shall, on payment of the court-fee payable under See. 44, be registered in the manner provided in Chapter H-A. The court-fee on the award has to be paid by the party directed by the Court to bear the costs. Sub.section (3) of S. 38 is material for the purposes of this section. It provides:

'The award shall be executed as follows:

(i) If the debtor makes default in the payment of any instalment due under the award to any creditor, such creditor may apply in the prescribed form to the Court for execution of the award.

(ii) If the Court on receipt of such application is satisfied that the debtor has made default in the payment of the instalment the Court shall transfer the award for execution to the Collector and thereupon the Collector shall recover the amount of the instalment from the debtor as arrears of land -revenue.'

The proviso to Clause (ii) is not material for the purposes of this judgment.

(iii) If the Court has passed an order for the delivery of possession of any property under Clause (v) of sub-section (2) of 8 32 such order shall on the application be executed by the Court as if it were a decree passed by it.'

Section 46 of the B.A.D.R. Act provider.

'Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908 (V of 1908) shall apply to all proceedings under this Chapter.'

Both Ss. 32 and 38 are included in Chapter 11 of the B.A.D.R. Act. Section 51A Provides:-

'Except as otherwise provided by this Act, and notwithstanding anything contained in any other law, no Civil Court shall entertain or proceed with any suit or proceeding in respect of-

(i) any matter pending before the Court under this Act, or

(ii) the validity of any procedure or the legality of any award, order or decision of the Board established under S. 4 of the repealed Act or of the Court, or

(iii) the recovery of any debt made payable under such award.'

Article 182 of the Indian Limitation Act, 1908, provided for the period of limitation for an application 'for the execution of a decree or order of any Civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1908'. The period of limitation was three years, or where a certified copy of the decree or order had been registered, six years and the time was to begin to run from the date of the decree or order, or where there had been appeal, the date of the final decree or order of the Appellate Court or the withdrawal of the appeal or where there had been a review of the judgment, the date of the decision passed on the review or where the decree was amended, the date of amendment. The rest of the clauses of Art. 182 are not material for the purposes of this judgment. Art. 183 of the 1908 Limitation Act was in respect of application to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary original civil jurisdiction, or an order of the Supreme Court, and the period of limitation was twelve years and the time was to begin to run when the present right to enforce the judgment, decree or order accrued to some person capable of releasing the right. Art. 181 of the Act of 1908 was a residuary Article for all applications and was in these terms:

'Applications for which no period of limitation is provided elsewhere in this Schedule or by S. 48 of the Code of Civil Procedure, 1908.'

The period was of three years and was to commence when the right to apply accrued. It may be pointed out that under the scheme of the 1908 Limitation Act, the first division of the Schedule provided periods of limitation for suits. The second division provided periods of limitation for appeals and the third division provided periods of limitation for applications of different kinds, and Articles 181, 182 and 183 were all included in the third division of the Indian Limitation Act of 1908.

4. The Indian Limitation Act, 1908 was repealed by the Limitation Act, 1963 (hereinafter referred to as the 1963 Limitation Act). Under the scheme of the Schedule to the Limitation Act of 1963, the first division of the Schedule related to suits, and in this first division, there are ten parts, each part dealing with suits falling under general or particular category; for example, suits relating to movable property were all referred to in part 6; suits relating to immovable property by a mortgagor or by a mortgagor were all referred to in part 5, and so on. The second division refers to appeals and the third division refers to applications. Part I of the third division refers to applications in specified cases and part Il refers to other applications. Corresponding to Art. 162 (sic) of the 1908 Limitation Act, is Article 136 which provides for period of limitation for an application for execution of any decree other than a decree granting mandatory injunction or an order of any Civil Court, and the period of limitation is twelve years commencing when the decree or order becomes enforceable or where the decree or any subsequent order directs payment of money or the delivery of any property to be made at a certain date or at recurring periods, when default in making the payment or delivery in respect of which execution is sought, takes place, provided that an application for the enforcement or execution of a decree granting a perpetual injunction shall not be subject to any period of limitation. Art. 137 which occurs in Part II of the third division of the Schedule, is comparable to Art. 181 of the Limitation Act of 1908 and provides period of three years for any other application for which no period of limitation is provided elsewhere in that division and the period of limitation begins to run when the right to apply accrues.

5. The Full Bench of this High Court in Zabuben Deuji v. Mansukhlal, : AIR1978Guj36 held as follows (at p. 41):-

'(1) An award made by a Court set up under the Bombay Agricultural Debtor's Relief Act or under any of the provisions of the said Act is not a 'decree'. For the purpose of S. 38 (3) (iii) of the B.A.D.R. Act by fiction of law, it is deemed to be a decree so as to provide for the same procedure prescribed in the Code of Civil Procedure for delivery of possession; the answer has to be understood to mean that by the provisions contained in S. 38 (3) (iii) the procedure prescribed for delivery of possession in the Code of Civil Procedure while executing decree awarding possession is written with pen and ink in the B.A.D.R. Act.

(2) As the award made under the B.A.D.R. Act is not a decree an application for execution of award would not be governed by Art.182 of the Indian Limitation Act, 1908 because Article 182 only applies to the execution of decree made by the Civil Court.

(3) Even though our answer to question No. 2 is in the negative, our further answer to question No. 3 is that Art. 181 of the Limitation Act, 1908 would not apply to an application for execution of the award because that article in its application is confined to application under the Code of Civil Procedure in respect of which no other provision is made in the Schedule of the Indian Limitation Act, 1908.

(4) No article of Indian Limitation Act, 1908 would apply to an application for execution of an award made under the B.A.D.R. Act.'

It may be pointed out that, at p. 8414 of the report of the Full Bench decision in : AIR1978Guj36 it was observed :

'We are in complete agreement with the reasoning adopted by the Division Bench of this High Court in Keshavlal v. Atmaram : AIR1967Guj101 in which Bhagwati J. (as he then was) has observed as under (at pp. 103-104):-

'It is clear that where an award is made by the Debt Adjustment Court in an application for adjustment of debts under Section 4 of the Act, such award would not be a decree for though it would be the formal expression of an adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy between them, such adjudication would not be in a suit. An application for adjustment of debts u/s. 4 of the Act is not a suit and an award on the application would not, therefore, be a 'decree' within the meaning of S. 2(2) of the Code.'

At another stage it is also observed:

'if the award were a decree within the meaning of the Code, it would have been totally unnecessary to use the words 'as if it were a decree passed by it.' Therefore, it is crystal clear that the award made by the Debt Adjustment Court is not a decree. An exactly identical view has been taken by the Bombay High Court in Ganesh Vinayak v. Bhau Babbana, (1969) 71 Born LR 284. The Division Bench has in terms held that the Court dealing with applications under the B.A.D.R. Act is not a civil Court and as Art. 182 applied to applications for execution of a decree or order of any civil Court, it did not apply to applications for execution of the award, the award itself not being called a decree or order of Civil Court.'

Pausing here for a moment, we find from the report in Keshavlal v. Atmaram : AIR1967Guj101 , that the Division Bench of this Court consisting of Bhagwati J. (as he then was) and A. R. Bakshi J. has not in terms decided whether a Court functioning under the B.A.D.R. Act is a Civil Court or not The principal question before the Division Bench consisting of Bhagwati J. (as he then was) and A. R. Bakshi J. was whether an application for setting aside an ex parte award made by the learned Judge of the Debt Adjustment Board was barred by limitation, and it was held that since an award was not a decree, the provisions of Art. 164 of the Indian Limitation Act, which provided for limitation for an application for setting aside an ex parte decree, would not apply. Under S. 36 of the B.A.D.R. Act a provision has been made for ex parts proceedings if any party does not appear, and under sub-section (2) of S. 36, the decision on the preliminary issue or the award shall not, except for sufficient reasons, be reopened merely on the ground that any of the parties thereto did not appear at the hearing. Therefore, it was for the Debt Adjustment Board under the provisions of S. 36 (2) to set aside an ex parte award and not by way of an application for setting aside an ex parte decree. It was held that such an application for setting aside an ex part* award would fall within the residuary Art. 181 and the period of limitation provided for such application being three years computed from the date when the right to apply occurs, the applications were within time.

6. With respect to the learned Judges who decided the Full Bench case in Zabuben v. Mansukhlal : AIR1978Guj36 it must be pointed out that it was the Division Bench of the Bombay High Court in Ganesh Vinayak v. Bhau Babbana, (1969) 71 Born LR 284 (supra) that had held that the Court functioning under B.A.D.R. Act is not a Civil Court. With great respect to the learned Judges of the Bombay High Court who decided Ganesh Vinayak v. Bhau Babbana it must be pointed out that under the definition in sub-see. (3) of S. 2 of B.A.D.R. Act, 'Court' means the Court of the Civil Judge (Senior Division) having ordinary jurisdiction in the area in which the debtor ordinarily resides and if there is no such Civil Judge, the Court of the Civil Judge (Junior Division), having such jurisdiction is the Court for the purposes of the B.A.D.R. Act. Appeals against the decision of the Court functioning under the B.A.D.R. Act lie to the District Court. Under Section 43 subsection (2), appeal from the Court shall lie to the District Court and the appeal shall be made within sixty days. It has been specifically provided in sub-section (3) that no second appeal shall lie against any decision, order or award of the Court under the Act. Under S. 43A, the District Judge may refer for disposal any appeal filed under S. 43 to an Assistant Judge or Civil Judge invested with powers to hear appeals under See. 27 of the Bombay Civil Courts Act, 1869. The Courts of the Civil Judge, Senior Division and the Civil Judge, Junior Division as well as the Court of the Assistant Judge and the District Judge are all set up under the Bombay Civil Courts Act, 1869, and they function as Civil Courts in the State. All that has been laid down by the B.A.D.R. Act is to entrust the work of disposing of applications under the B.A.D.R. Act in 'accordance with the special procedure laid down in the B.A.D.R. Act to ordinary Civil Courts which are already functioning under the Bombay Civil Courts Act, 1869. It may be pointed out that, by virtue of S. 51A of the B.A.D.P-. Act it is only clarified that in respect of matters falling under the B.A.D.R. Act, only Civil Courts designated in sub-section (3 of S. 2. namely the Courts having jurisdiction over the Place where the debtor ordinarily resides, will dispose of a locations under the B.A.D.R. Act and the provisions of the Code of Civil Procedure are not to be applied for invoking jurisdiction of any other Civil Court Thus, by virtue of the Provisions of S. 51A, all that has been done is that the powers of the ordinary Civil Courts in respect of matters falling within the B.A.D.R. Act are to be regulated and controlled and the procedure is to be governed under the B.A.D.R. Act and not under the ordinary law governing Civil Courts. Hence, with respect to the learned Judges of the Bombay High Court, it is not possible for us to agree with the conclusion in Ganesh Vinayak v. Bhau Babbana that the B.A.D.R. Act, sometimes called the Debt Adjustment Court under the B.A.D.R. Act, is not a Civil Court in the sense of the words 'Civil Court' as known to the law of the land.

7. In paragraph 9 of the Full Bench decision in Zabuben v. Mansukhlal : AIR1978Guj36 (supra) reference is made to several decisions given by single Judges of this Court in several civil revision applications. One of those decisions is by one of us (Chief Justice) in Civil Revn. Applns. Nos. 189 and 190 of 1962, decided on 15-4-1966 another was by S. H. Sheth J. in Civil Revn. Appln. No. 562 of 1967 decided on 12-12-1969 and the third one was by one of us (A. D. Desai J.) in Civil Revn. Applns. Nos. 504 and 505 of 1970 decided on 9-7-1973. Out of these several decisions, each of them decided by a single Judge, it was in the first in point of time, namely, decision in Civil Revn. Applns. Nos. 189 and 190 of 1962 decided on 15-4-1966 that the legal position was considered and the two other decisions followed that decision which was delivered first in point of time. In Civil Revn. Applns. Nos. 189 and 190 of 1962, it was held that an award given by a Debt Adjustment Court under the B.A.D.R. Act was an order of a Civil Court as distinguished from a decree of a Civil Court and it was held that execution of such an award would be governed by the provisions of Art. 182 of the Indian Limitation Act, 1908 and not by the residuary Art. 181 which applied to all applications not falling under any of the Articles of the Limitation Act, and by virtue of the fact that the award was required to be registered, the period of limitation would be six years. No distinction in that judgment was made between an award which directed possession of any property and an award which was not providing for delivery of possession of any property. Section 38 of the B.A.D.R. Act which provides for registration of an award was in terms relied upon for the purpose of holding that the period of limitation would be six years and would be governed by Art. 182 of the Limitation Act. The decision of the Full Bench in Zabuben v. Mansukhlal considers the question only from one point, namely, whether an award passed by a B.A.D.R. Court is a decree or not. But, with great respect to the learned Judges who constituted the Full Bench, the question that is required to be considered is whether the award is an order of a Civil Court or not. If it is an order within the meaning of the terminology which was used in Art. 182 of the Limitation Act, 1908 and which is used at present in Art. 136 of the Limitation Act, 1963. the application for execution of the award would be an application for execution of an order of a Civil Court. The question, therefore, that we have now to consider is whether an award passed by a Debt Adjustment Court under the B.A.D.R. Act is an order of a Civil Court.

8. We may point out that Order 21 of the Civil Procedure Code deals with the procedure for execution of decrees and orders. Under S. 2, sub-section (2) of the Civil Procedure Code, 'decree' means a formal expression of adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy and may be either preliminary or final and it shall be deemed to include the rejection of a plaint and the determination of any question, etc. Under Section 2 (14), 11 order' means the formal expression of any decision of a Civil Court which is not a decree. It is true that, under Section 46 of the B.A.D.R. Act, save as otherwise expressly provided in the Act, the provisions of the Code of Civil Procedure are to apply to all proceedings under this Chapter. Even if the definitions as laid down in S. 2 sub-section (2) and S, 2 sub-section (14) are not to apply to the proceedings under the B.A.D.R. Act, yet, it is clear that, even according to the ordinary meaning of the words, an award directing certain things to be done, certain payments to be made, certain property to be delivered as is contemplated in the scheme of the B.A . D.R. Act, would be an order for the purposes of Art. 182 of the Limitation Act, 1908 and Art. 136 of the Limitation Act, 1963. Such an award is a command issued by a Civil Court and hence is an 'order' of a Civil Court even according to ordinary meaning of the word 'order'. Therefore, so far as, the Limitation Act, 11908 and the Limitation Act, 1963, are both concerned, it must be held that an award passed by a Debt Adjustment Court is an order of a Civil Court.

9. But before Art. 182 of the Limitation Act, 1908 could be said to have applied to an application for execution of an award, whatever the type of the award, whether for possession' of any property or otherwise, it must be found out whether it was an application under the Code of Civil Procedure, 1908. As pointed out by the Supreme Court in Town Municipal Council, Athani v. Presiding Officer, Labour Court, Hubli : (1969)IILLJ651SC at p. 1343:

'When this Court earlier held that all the articles in the third division to the schedule, including Art. 181 of the Limitation Act of 1908 governed applications under the Code of Civil Procedure only, it clearly implied that the applications must be presented to a Court governed by the Code of Civil Procedure. Even the applications under the Arbitration Act that were included within the third division by amendment of Arts. 158 and 178 were to be presented to Courts whose proceedings were governed by the Code of Civil Procedure.'

It was held by the Supreme Court in a long line of decisions that, as a result of a long series of judicial decisions of different High Courts in India, Art. 181 of the Limitation Act, 1908 was to be read as if the words 'under the Code' were added in the first column of Art. 181. In Sha Mulchand and Co. v. Jawahar Mills Ltd. Salem : [1953]4SCR351 the Supreme Court observed (at p. 104):

'This long catena of decisions may well be said to have, as it were, added the words under the Code' in the first column of that Art. If those words had actually been used in that column then a subsequent amendment of Arts. 158and 178 certainly would not have affected the meaning of that Article. It however, as a result of judicial construction, those words have come to be read into the first column as if those words actually occurred therein, we are not of opinion, as at present advised, that the subsequent amendment of Arts. 158 and 178 must necessarily and automatically have the effect of altering the long acquired meaning of Art. 181 on the sole and simple ground that after the amendment the reason on which the old construction was founded is no longer available.'

In Bombay Gas Co. v. Gopal Bhiva, AIR U64 SC 752 at p. 758 the Supreme Court held:

'It is well settled that Art 181 applies on1y to applications which are nude under the Code of Civil Procedure, and so its extension to applications made under S. 33C (2) of the Act would not be justified. As early as 1880, the Bombay High Court had held in Bat Manekbai v. Manekji Kavasji (1880) ILR 7 Bom 213, that Art. 181 only relates to applications under the Code of Civil Procedure in which case no period of limitation has been prescribed for the application, and the consensus of judicial opinion on this point had been noticed by the Privy Council in Hansraj Gupta V. Official Liquidators, Dehra Dun Mussorie Electric Tramway Co. Ltd. 60 . An attempt was no doubt made in the case (Sha Mulchand I v. Jawahar Mills) of : [1953]4SCR351 to suggest that the amendment of Arts. 158 and 178 1pso facto altered the meaning which had been attached to the words in Art. 181 by, Judicial decisions, but this attempt f6114 became this Court held that the long catena of decisions under Art. 181 may well be said to have, as it were, added the words under the Code in the first column of that Article.'

It is clear from the above discussion of the law under the Indian Limitation Act, 1908, that all that had weighed with the Supreme Court in the decisions relating to Art. 101 of the Indian Limitation Act, 1908 was that all the Articles in third division of the First Schedule of the Indian Limitation Act. 1908 dealt with applications under the Code of Civil Procedure only. Therefore, even as regards Art. 182 of the Indian Limitation A4 1908, in our opinion, the words 'under the Code Procedure Code' or 'under the Code of Civil Procedure' must be deemed to have been added, because the reasoning which was found to apply to Art. 181 must also be made applicable to Art. 182 which was one of the Articles in the third division of the First Schedule to the Limitation Act of 1908.

10. Under these circumstances, it must be held that, so far as Art. 182 of the Limitation Act of 1908 was concerned it must, be first found out whether the application for execution of the award of a Debt Adjustment Court would or would not be considered to be an application for execution made under the Code of Civil Procedure. Under S. 38 of the B.A.D.R. Act, a distinction is made between awards by which payment of money by instalments has been ordered, and awards where delivery of possession of any property has been ordered under Section 32 (2) (v) of the B.A.D.R. Act. So far as an award referred to in S. 38 (3) (1) is concerned, the creditor has to apply in the prescribed form to the Court for the execution of the award if the debtor makes default in payment of any instalment due under that award. The form of the application is prescribed by Rule 10 of the Bombay Agricultural Debtors, Relief Rules, so far as application under S. 38 (3) (1) is concerned and R. 10 of the above rules framed under S. 65 of the B.A.D.R. Act which is the section conferring rulemaking power, and Form 8 is in these terms:

' FORM 8

(See Rule 10)

To,

The Court of Civil Judge Sr./ Jr. Division .........

Under clause (i) of sub-section (3) of S. 38 of the Bombay Agricultural Debtors' Relief Act, 1947,I ..... son of ........................................resident of :taluka, ..................hereby apply for execution of award No. -............ dated ................ passed by the Court as the debtor ..............has made default in the payment of the instalment due to be paid in the month of ......year... Dated .....19

Signature of the Creditor............................ '

It is, therefore, clear that so far as the application for execution of what may be called a money award is concerned, under the provisions of S. 38 (3) (i), application has to be made in a special form laid down in the B.A.D.R. Act and that application cannot be said to be an~ application made under the Code of Civil Procedure. By the wording of Section 38 (3) (i) which requires the application be in the prescribed form and looking the form and rule 10 by which the form to prescribed, it is clear that though an award is an order of a Civil Court, an application for execution of the award is not made under the Code of Civil Procedure so far as the application under Section 8 (3) (i) is concerned.

11. So far as the application under Section 38 (3) (iii) is concerned, the position. in the case of an application for execution of an order for delivery of possession would stand on a different footing because the words are 'shall, 'on the application, be executed by the Court as if it were a decree passed by it.' It is clear that, by the use of the words 'as if it were a decree passed by it', a legal fiction is created by the Legislature and that which is not a decree has to be executed as if it were a decree passed by the Court. In East End Dwellings Co. Ltd. v. Finsbury Borough Council, (1952) AC'109, Lord Asquith observed as follows:

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it......... The statute says that you must imagine a certain state of affairs it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

This passage from the speech of Lord Asquith was cited with approval by the Supreme Court in State of Bombay v. Pandurang Vinayak. AIR 1953 SC 24C There it was held by the Supreme Court that when a statute enacts that something shall be deemed to have done which in fact and truth Was not done, the Court is entitled and bound to ascertain for what purpose and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. Therefore, the fiction created by S. 38 (3) (iii) treating an order for delivery of possession to be executed by the Court as if it were a decree passed by the Court, must be treated for the purposes of execution on the same footing as a decree passed by a CWH Court. The only way a decree passed by a Civil 'Court can be executed is by applying under the Code of Civil Procedure under 0. 21, and in this connection, it must be borne in mind that, save as otherwise expressly Provided by the B.A.D.F_ Act, the provisions of the Code of Civil Procedure are to apply to all the proceedings under the Chapter. Unlike an application for execution of an award when the award Is for payment of money by instalment, an award when it orders delivery of possess ion, is required to be executed as if it were a decree and for such awards, we have to proceed on the same footing as if I were a decree passed by a Civil Court Imagination must not be allowed to boggle when applying this fiction created by S. 38 (3) (iii) of the Act. The Full Bench in Zabuben- v. Mansukhlal (AIR 197 Guj 36) (supra) observed in para. 9 (a P. 843 of Guj LR) : (at P. 39 of AIR):

'With greatest respect we may say that these decisions overlook the obvious in S. 38 (3) (iii) that even by fiction award is not to be deemed to be a decree but if the award directs amongst other things delivery of possession that part of the award directing delivery of possession to be executed as a decree. By fiction of law only a specific part of award is to be treated as a decree. Award as a whole is not a decree. It is to be treated as a decree for the purpose of S. 38 (3) (111) and the fiction is limited to the mode prescribed for delivery of possession in the Code of Civil Procedure. All the awards under the Act are not to be executed an a decree nor are they executable as decree. Mode of execution of an award is provided for in S. 38 (1) and (2) and briefly it provides for execution through the Collector, the procedure to be followed by the Collector being one prescribed under the Bombay Land Revenue Code for recovering arrears of land revenue. It would be merely stating an obvious that where amount is payable under a decree made by a City Court it is to be recovered by the procedure prescribed in Order XXI. It cannot be recovered as an arrear of land revenue by the Collector. It is only where an order involves delivery of possession that sub-clause (III) of sub-section (3) enacts an action that for delivery of possession court may proceed to execute the award as if it were a decree passed by it. But for the fiction enacted in the relevant provision, the legislature clearly intimated that award was not a decree. If it were a decree, sub-clause (III) of sub-section (3) would be redundant and superfluous and unless inevitable, redundancy or superfluity, cannot be attributed to the legislature. We are in complete agreement with the reasoning adopted by the Division Bench of this High Court in Keshavlal v. Atmaram : AIR1967Guj101 , in which Bhagwati J. (as he then was) observed ..... '.

It was held by the Full Bench in Zabuben v. Mansukhlal that even for execution of the award under S. 38 (3) (iii) the award not being a decree, application for execution would not be an application for execution of an order or a decree of a Civil Court. With great respect, in the decision in Zabuben v. Mansukhlal the Full Bench allowed its imagination to boggle and failed to give full effect to the fiction created by the statute. Once it is held that, for the purpose of execution of a possession award, execution has to be on the same lines as if it were a decree passed by Court, it is obvious that the application for execution of a possession award under Section 8 (3) (iii) would be an application made under the Code of Civil Procedure and it would be an application under the Code of Civil Procedure for execution of the order of a Civil Court. Under these circumstances, so far as applications falling within S. 38 (3) (iii) of the 1947 Act are concerned, in our opinion, these applications were governed by Art. 182 of the Indian Limitation Act, 1908 and, therefore, the 'period of limitation in such cases would be six years in view of the requirement as to registration of the award. At the same time, we must make it clear that, so far as applications under S. 38 (3) (i) are concerned, they are not applications under the Code of Civil Procedure and, there fore, they would not fall under any of the Articles under the third division of the Schedule to the Indian Limitation Act, 1'8 and hence they would not be governed by any period of limitation.

12. In Zabuben v. Mansukhlal : AIR1978Guj36 the Full Bench followed the decision of the Supreme Court in Athani Municipality V. Labour Court, Hubli : (1969)IILLJ651SC and following that decision, held that even under the Limitation Act of 1963, the residuary Article 137 would apply only to applications made under the Code of Civil Procedure, 1908. The decision of -the Supreme Court in Athani MuniciPality v. Labour Court, Hubli : (1969)IILLJ651SC rested on two grounds. First, it was held by the Supreme Court that even under the Limitation Act of 1963. the residuary Article 137, being residuary Article for applications, would apply to the applications made under the Code Of Civil Procedure, 1908. The second ground for coming to the conclusion was that the Labour Court functioning under the provisions of the Industrial Disputes Act was not a Civil Court and therefore it would not be governed by Section 3 of the Limitation Act as the Limitation Act applies only to Courts governed by the Code of Civil Procedure or the Code of Criminal Procedure and not to Labour Courts or Industrial Tribunals.

13. In Nityanand M. Joshi v. The Life Insurance Corporation of India : (1969)IILLJ711SC , the Supreme Court held that the Labour Court functioning under the Industrial Disputes Act was not a Court with in the meaning of the Limitation Act. At the same time, the Supreme Court expressed a doubt whether the view of the Supreme Court in the earlier decision in Athani Municipality's case : (1969)IILLJ651SC that, in spite of the change between the terminology of the Limitation Act, 1908 and the ter7ninology of the Limitation Act of 1963, the interpretation of Article 181 of the Limitation Act, 1908 would apply to Art. 137 of the Limitation Act of 1963. In Nityanand M. Joshi's case (supra), the Supreme Court indicated that the view in Athani Municipality's case would require serious reconsideration. In Kerala State Electricity Board v. T. P. Kunhaliumma : [1977]1SCR996 , after considering all the earlier decisions on the point and pointing out the scheme of the Limitation Act of 1908, the Supreme Court observed that 'application' has been defined in Section 2(b) of the Limitation Act of 1963 to include a petition. In para 18, Ray, C. J., speaking for the Supreme Court at page 185 of the Report, observed:

'The alteration of the division as well as the change in the collocation of words in Art. 137 of the Limitation -Act, 1963 compared with Art. 181 of the 1908, Limitation Act shows that applications contemplated under Art, 137 are not applications confined to the Code of Civil Procedure. In the 1908, Limitation Act there was no division between applications in specified cases and other applications as in the 1963, Limitation Act. The words 'any other application' under Art. 137 cannot be said on the principle of ejusdem generis to be applications under the Civil Procedure Code other than those mentioned in Part I of the third division. Any other application under Article 137 would be petition or any Application under any Act. But it has to be an application to a Court for the reason that Secs. 4 and 5 of the 1963, Limitation Act speak of expiry, of prescribed period when Court is closed and extension of prescribed period if applicant or the appellant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application during such period.'

It is thus clear that the decision of the Supreme Court in Athani Municipality's case, insofar as it says that even under Art. 137 of the Limitation Act of 1963, applications would be required to be made under the Code of Civil Procedure, is overruled by the Supreme Court itself in Kerala State Electricity Board's case (supra), and that part of the decision in. Athani Municipality's case is no longer good law.

14. The Supreme Court does not in terms now say whether part one of the third division in the Schedule to the Limitation Act of 1963 refers to applications under the Civil Procedure Code. It may be pointed out that, unlike the scheme of the third division of the Limitation Act of 1908, part one of the third division of the Schedule In 1963 Act, which deals with applications in specified cases. Article 119 deals with applications under the Arbitration Act, 1940, Article 131 deals with applications to any Court for the exercise of its powers of revision, inter alia, under the Code of Criminal Procedure, 1898. Article 132 deals with applications to the High Court for certificate of fitness for appeal to the Supreme Court under Clause (1) of Art. 132 Article 133 or sub-clause (c) of Clause (1) of Article 134 of the Constitution or under any other law for the time being in force. Article 133 deals with applications to the Supreme Court for special leave to appeal, (a) in a case involving death sentence, (b) in a case where leave to appeal was refused by the High Court, and (c) in any other case. It is thus clear that part one of the third division of the Schedule of the Limitation Act of 1963 no longer contains only applications under the Code of civil Procedure. It contains Articles covering applications under the Arbitration Act, under the Constitution and under the Code of Criminal Procedure. It also covers applications to the Supreme Court for certificate of fitness under any other law, that is, other than the Constitution, for the time being in force. Under these circumstances it is obvious that in the different scheme of things which prevail in part one of the third division of the Schedule to the Limitation Act of 1963, it cannot be said that all applications in part one of the third division of the Schedule are contemplated to be applications only under the code of Civil Procedure. Under these circumstances, so far as Art.136 is concerned, it is not contemplated that there must be an application under the Civil Procedure Code for execution of a decree or order of any Civil Court. So long as there is an order of a Civil Court which is executable and the period of Limitation would be governed by Article 136, it is not permissible to refer to the residuary article 137. Because of the scheme of Arts. 136 and 137,so far awards under the B.A.D.R. Act are concerned, they being orders of the Civil Courts , all applications for execution of such awards, whether for money or for possession, would be governed by Art. 136. The distinction which was required to be made because of the scheme of Articles of Limitation Act of 1908 between awards in so far as they were for payment of instalment of money, is now no longer required under the Limitation Act of 1963. all that is required for the purpose of Art. 136 is that there should be an application for execution of an award made under the B.A.D.R. Act, and since such an award is an order of a Civil Court the application for execution of such award would be governed by Art. 136 which deals with applications for execution of any decree or order of nay Civil Court. The period would be twelve years from the date when the decree or order becomes enforceable.

15. Our conclusions so far reached are that, so far as the Limitation Act Of .1908 was concerned, the application for execution of an award under S. 38 (3) (i) was not governed by any period of Limitation as it was not an application under the Code of Civil Procedure but an application for execution of an award, in so far as it directed possession of any property, would be governed by Art. 182 of the Limitation Act of 1908 since it was an application for execution of an order of a Civil Court and it would be an application under the Code of Civil Procedure which by a deeming fiction is required to be executed as a Civil court. Moreover, as in all cases the award would be registered, the period would be ax years under Article 182.

16. Mr. Zaveri for the respondents in this special civil application has drawn our attention to Section 30. Clause (b) of the Limitation Act of 1963. That section is in these terms:

'Notwithstanding anything contained in this Act -

(a) x x x x x x

(b) any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within the period prescribed for such appeal or application by the Indian Limitation Act. 1908. which ever period expires earlier.'

He contends that under the Indian Limitation Act. 1908, no period of limitation was prescribed for awards where there was no direction for possession of any property, that is when the award was, for money payable by instalments only there was no period of limitation under the Act of 1908, whereas by the interpretation which we have now placed on the provisions of the 1963 Act, the period of limitation would be twelve years. He therefore contends that as the Period of limitation prescribed by the 1963 Act is shorter than the period prescribed by the Indian Limitation Act of 1908. the application was required to be made within the period of ninety days from Jan 1,1964, when the Indian Limitation Act, 1963, came into force. His contentions that, on a strict interpretation of Section 38 (b) (sic), this is the only position which would emerge. In this connection. Mr. Zaveri drew our attention to the provisions of Section 30(a) which deals with a situation similar to Clause (b) so far as suits are concerned. Section 30(a) is in these terms:

'30. Notwithstanding anything contained in this Act -

(a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation. Act, 1908, may be instituted within a Period of seven years next after the commencement of this Act or 6vithin the period prescribed for such suit by the Indian Limitation Act. 1908, whichever period expires earlier:

Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908, and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908, as has already expired before the commencement of such suit under this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this, Act-'

Mr. Zaveri also drew our attention to the Statement of Objects and Reasons to the Bill No. 8 of 1969 which was enacted as the Limitation (Amendment) Act 1969. Prior to the amendment, there was no proviso to S. 30(a) and the period in which the suit was to be filed in Clause (a) was five years. By this Amendment Act of 1969, for the words 'five years', the words- 'seven years' were substituted and the proviso as it now stands has been inserted. The Statement of objects and Reasons to the Bill mentions:

'The Limitation Act, 1963 (hereinafter referred to as the 1963 Act) repealed and re-enacted with modifications the provisions of the Indian Limitation Act, 1908 (hereinafter referred to as the 1908 Act). Clause (a) of Section 30 of the 1963 Act provides a special period of limitation in respect of suits relating to causes of action which had arisen before the commencement of the Act and for which the period of limitation prescribed under that Act is shorter than the period prescribed under the 1908 Act The Clause as originally enacted provided that such suits may be instituted within the period of limitation prescribed under the 1908 Act or within a period of five years from the commencement of the 1963 Act. Whichever period expires earlier. The 1963 Act reduced the period of limitation somewhat drastically in respect of certain types of suits. The suits in respect of which the periods of limitation were reduced by the Act include, inter alia. not only suits, by or on behalf of Government but also certain types of suits by private individuals. In the case of suits by and on behalf of the Government the period of limitation was reduced from 60 to 30 years. Amongst reductions made in the case of suits by private individuals, particular mention may be made of the reduction from 60 to 30 years in the case of suits to redeem or recover possesion of immoveable property which has been mortgaged and the reduction from -30 to 3 years, in the case of suits for recovery of movable property deposited or pawned from a depository or a pawnee. The effect of Section 30(a) of the 1963 Act on these cases may be explained by an illustration. A mortgagor is a debtor whereas 1908 Act gave him a period of 60 years to find money to repay his debt and redeem his properties and whereas even the 1963 Act gave him a period of 30 years, in cases in which Section 30(a) of the 1963 Act is attracted , the period may become reduced considerably and in an extreme case where the cause of action has arisen a day before the commencement of the 1963 Act, the maximum period would be 5 years. In view of these anomalous consequences and as the maximum period of 5 years provided under Section 30(a) of the 1963 Act was due to expire on the 31st Dec, 1968. the Ordinance, namely, the Limitation (Amendment) Ordinance, 1968 was promulgated on the 31st Dec., 1968 to amend, inter alia, Section 30(a) of the 1963 Act so as to increase the maximum period provided therein from 5 years to 7 years.

2. It is felt that even the extension of the maximum period of 5 years provided in Clause (a) of Section 30 of the 1963 Act by 2 more years will not be sufficient to avoid the anomalous consequences arising out, of the provisions of that clause and that in addition to such extention, it would be necessary to ensure that in the case of no suit the period of limitation actually available will fall short of the period prescribed by the 1963 Act even if the cause of action arose before the commencement of the 1963 Act.'

In our opinion, the illustration given in the Statement of Objects and Reasons is rather unhappy and does not do full justice to the effect of the provisions of Section 30, Cls. (a) and (b). The proviso undoubtedly, as pointed out in para 2 of the Statement of Objects and Reasons, has been laid down to provide a solution so that a plaintiff filing a suit is in no case worse off under See. 30 and he will get the benefit of at least the amended provisions of the 1963 Act in a situation contemplated by the proviso.

17. It may be pointed out that provisions similar to Section 30 of the 1963 ' Limitation Act came up for consideration before the Supreme Court in two cases. In Ramprasad Dagadurarn v. Vijiykumar Motilal : AIR1967SC278 , the question of Section 30 of the Limitation Act of 1908, inserted by Part B States (Laws) Act.

1951, arose for consideration. That section provided as follows:

'Notwithstanding anything herein contained, any suit for which the. period of limitation prescribed by this Act is shorter than the period of limitation prescribed by any law in force in a Part B State which is repealed by the Part B States (Laws) Act, 1951. may be instituted within the period of two years next after the coming into force of this, Act in that Part B State or within the period prescribed for such suit by such corresponding law, whichever period expires first.'

In Ramprasad v. Vijaykumar (supra), the Supreme Court decided the case not on the basis of Section 30 of the Indian Limitation Act, but on the footing that newly added parties would be governed by the period of limitation as applicable at the date of their being added as parties. The Supreme Court pointed out in para. 13at page 283-of the report in Ramprasad v. Vijaykumar that, prima facie, the Indian Limitation Act, 1908, which was in force at the date of the institution of the suit was the law of limitation applicable to the suits, The question of Section 30 of the Indian Limitation Act, 1908 inserted by the Part B States (Laws) Act, 1951 which made a suitable provision safeguarding vested rights in cases where the period prescribed was shorter than that prescribed by the corresponding law prevailing in Part B State did not strictly come up for consideration in that case.

18. In Syed Yusuf v, Syed Mohammed : [1967]2SCR318 , a wakf in Hyderabad was dispossessed of its property on 20th Sep., 1937. Under the Hyderabad Limitation Act then in force, there was no limitation for a suit for recovery of wakf property, as by virtue of See. 29 (c) of that Limitation Act, such a suit was outside the Act. On 1-4-1951, Part B State (Laws) Act, 1951 came into force and extended the Limitation Act to Hyderabad. On 3-2-1956, the Mutwali of the Dargah and the Board of Muslim Endowments instituted a suit for recovery of the property. The suit was dismissed as time-barred but was decreed in appeal by the High Court on the ground that it was governed by the Hyderabad Limitation Act, as the application of the Indian Limitation Act would bar and confiscate the existing cause of action for the recovery of the suit property and consequently, the Indian Limitation Act could not affect the suit and as such the suit was governed by the Hyderabad Limitation Act. On these facts, the Supreme Court, reversing the High Court decision, held that the suit was governed by the Indian Limitation -Act and inasmuch as the period of limitation prescribed by the Indian Limitation Act was shorter than the period prescribed by the Hyderabad Limitation Act which was an unlimited period, Section 3o would apply and as such the suit had to be brought within two years from 1-4-1951, on which date the Indian Limitation Act was extended. - The Part B State (Laws) Act, while extending the Indian Limitation Act to Hyderabad allowed reasonable time to plaintiffs to institute the suit. The, suit was therefore governed by the Indian Limitation Act and was barred. It was pointed out by Bachawat J., speaking for the Supreme Court in para 3 at page 1320:

'Section 30 should be construed liberally considering that it is intended to alleviate hardship consequential on the introduction of a shorter period of limitation.- Ex facie, See. 30 applies to a suit for which the period of limitation prescribed by the Indian Limitation Act, 1908 is shorter than the period of limitation prescribed by the corresponding law in force in the Part B State. Now, the Hyderabad Limitation Act did not apply to a suit for recovery of possession of a wakf property. The result was that under the corresponding law in force in Hyderabad there was no limitation for such a suit. In other words, the period of limitation prescribed for the suit by the corresponding law in Hyderabad was an unlimited period. Article 142 of the Indian Limitation Act, 1908 applies to a suit for recovery of possession of wakf property. As it prescribes a shorter period of limitation for the institution of the suit, Section 30 enabled the plaintiffs to institute the suit within a period of two years after April 1, 1951. The Part B States (Laws) Act, 1951 while extending the Indian Limitation Act, 1908 to Hyderabad thus allowed the plaintiffs reasonable time to institute the suit for recovery of the property. The extension of the Indian Limitation Act. 1908 to Hyderabad and the consequential change in law prescribing a shorter period of limitation did not confiscate the existing cause of action and must be regarded as an alteration in the law of procedure for 'he enforcement of the cause of action. We must, therefore, apply the normal rule that the law of limitation applicable .o the suit is the law in force at the date of the institution of the suit. The suit is, therefore, governed by the Indian Limitation Act, IM. The plaintiffs did not institute the suit within two years after April 1, 1951. ' They cannot, therefore, avail themselves of the benefit of S. 30.'

it is clear that the principles laid down regarding Sec 30 of the Indian Limitation Act, 1908, insofar as it made provision for Part B States to which the Limitation Act of 1908 was extended, would, apply to Section 30 of the Limitation Act of', 1963 and Section 30 would have to be construed liberally since these provisions are, intended to alleviate hardship consequential on the introduction of the short period of limitation, A provision of la which is meant to alleviate hardship consequential on the introduction of a shorter period of limitation cannot be sol construed as to work hardship. In our opinion, in this connection. it is the decision of the Patna High Court in Mani Devi v. Ram Prasad : AIR1968Pat70 , which would help us in deciding this particular point.

19. Untwalia. J, as he then was in the Patna High Court, dealt with the provisions of Section 30 of the Limitation Act, 1963, and observed at page 73 in para 8:

'........... the law of limitation which governs an action is the law which prevails on the date when the suit is instituted or when the appeal or application is filed. Under Section 3 of the Limitation Act of 1963 or under the same section of the Limitation Act of 1908, every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence . .........If a suit, appeal or application filed on a particular date after coming into force of the new Limitation Act is not barred under the provisions of this Act, recourse to Section 30 need not be taken and is not permissible to be taken. In that event, only Section 31 comes into play which says that-

'Nothing in this Act shall- (a) enable any suit, appeal or application to be instituted. preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908 expired before the commencement of this Act, or

(b) affect any suit. appeal or application instituted, preferred or made before and pending at, such commencement.'

That is to say, if the remedy was barred by the expiry of period of limitation prescribed under the old Act of 1908 before the commencement of the new Act of 1963, a larger period, if any, prescribed under any of the articles of the new Act will not revive the remedy which was barred. But subject to that, if the filing of the suit, appeal or application is not barred under the new Act on the day it is filed, it is simply not barred. If, however, it is barred on the day when it is filed under Section 3 of the new Act but it was not so barred by the Limitation Act of 3908, th6n and then only Section 30 comes into play in order to find out as to whether by taking recourse to Section 30, it can be held that the suit, appeal or application filed on a particular day is not barred by limitation.'

Then the learned Judge proceeds to give illustrations of how Section 30 should be reasonably interpreted. In para 9, the illustration is given-

'Suppose a suit by Government under the old Limitation Act could be filed within 60 years from the date when the right to sue accrued, the period under the new Act being 30 years. Suppose further that a right to sue accrued to the Government, say, in the year 1930 and the suit is filed in 1966. Obviously, it would be barred under the new Act but not under the old Act. In such a situation, Clause (a) of Section 30 will come into play and the suit can be filed by the Government by the end of 1968 - on the expiry of 5 years next after the commencement of this Act. Suppose the right accrued to the Government say, in the year 1905.Then such a suit could be filed in the year 1965, counting the period of 60 years from 1905, otherwise anomalous results- will follow. Suppose the right to sue accrued to the Government, say in the year- 1958. Under the old law the suit, could be filed by the year 2018: under the new law it could be filed by 1988~ But if See. 30 is applied to such a case, it will have to be filed by the end of 1968, That is to say, the period of limitation will be neither 60 years nor 30 years but it would be 10 years only, Such an interpretation of Section 30 will be highly unreasonable and against the principle 'underlying it. Similar is the meaning which has got to be given., by necessary rules of construction, to Ci. (b) of S. 30, And, to emphasize. the point again, if an appeal or an application when filed after 1-1-1964 is barred under the new Lim Act but not under the old one, then it has to be filed before the expiry of 90 days or the expiry of the period prescribed under the old Act, whichever expires earlier. But, in the instant case, when the application filed on 4 - 4 -1964 under 0. 21, R. 95 of the Code was not barred under the new Act nor was it barred under the old law on the day of the commencement of the new law, neither See. 30 nor Section 31 comes into play ..................

Now it may be pointed out that a Division Bench of this High Court consisting of S, H. Sheth, J. and one of us (B. K. Mehta, J.) considered the provisions of See, 30, Clause (a) of the 1963 Act and the proviso to that section in Thacker Dungershi v. Thacker Damji : (1976)17GLR246 , as under at p. 253:

'Now, if the suit could be filed within seven years from the date on which the Limitation Act, 1963 came into force, the period of limitation on that basis would expire on 1st Jan., 1971. From a comparative analysis of the provisions of the Indian Limitation Act, 1908 and the Limitation Act, 1963 it is quite clear that the plaintiffs could have filed the present suit at any time before 19th Sep., 1970 which was earlier than lst Jan., 1971. Therefore, by virtue of the provisions contained in Art. 145 of the Indian Limitation Act, 1908 read with Clause (a) of Section 30 and Art, 70 of the Limitation Act, 1963, it is quite clear that the time which was available to the plaintiffs to file the present suit would expire only on 19th Sep., 1970, The plaintiffs filed the present suit on 17th Sep, 1968. It was, therefore, within time. Proviso to Clause (a) of Sec, 30 has no application to the facts of the instant case because the period of seven years prescribed by Clause (a) of Section 30 would not expire earlier than the period of limitation prescribed by Art. 145 of the Indian Limitation Act, 1908.'

We must confess that the proviso to Clause (a) of Section 30 raises a complicated question, but, if the intention of the Legislature in enacting Section 30 is borne in mind, namely, to alleviate hardship caused by the shorter period of limitation being prescribed by the 1963 Act as compared to the period prescribed under the 1908 Act, the conundrum can be solved. Under the main body of Clause (a) of See. 30 of the 1963 Act, first the condition must be satisfied that the period of limitation prescribed under the 1908 Act. Secondly, it must be found that, applying the period of limitation prescribed by the 1963 Act, the suit is liable to be time-barred. If it is not otherwise liable to be time-barred, the occasion for invoking the provisions of Section 30 does not arise at all as pointed out by the Patna High Court in Mani Devi's case : AIR1968Pat70 . It is only if under the 1963 Act suit would be barred looking to the date of accrual of cause of action and the condition about the period of limitation under the 1963 Act being the shorter period than the period under the 1908 Act is satisfied that Clause (a) of Section 30 may not be applicable and the period cannot be seven years from the date of the commencement of the 1963 Act. However, even in such a case, where the period of limitation of seven years expires earlier than the period of limitation prescribed under the 1908 Act and consequently, the said period of seven years together with so much of the period of limitation in respect of such suit under the 1908 Act has already expired before the commencement of the 1963 Act, is together shorter than the period prescribed under the 1963 Act, then, the suit may be instituted within the period of limitation prescribed under the 1963 Act. As has been well settled law, the function of the proviso is to work as an exception to the main clause. It is obvious that Section 30(a) is an exception to the general scheme of the provisions of the Act of 1963. The proviso being an exception to an exception puts the matter at large, 'that is, the proviso enacts that in the situation contemplated by the proviso the period of limitation would be 'exactly what it Would have been if Clause (a) had not been enacted. That is all that is indicated by the proviso, namely, that if the conditions laid down in the proviso to Clause (a) of S. 30 are satisfied , then,, the matter would be governed by the period of limitation prescribed under the Act of 1963. Under the general law, every suit, appeal or application would be governed by the law of limitation prevailing on the date on which the suit, appeal or application is filed. It is only the exception which has been provided in Clause (a) of See. 30 so as to prevent hardship when the period of limitation under the new Act is shorter than the period under the old Act.

Clause (a) can only be invoked. if, under the new Limitation Act, by applying, the shorter period of limitation, the suit is likely to be time-barred within the period of seven years from the commencement of the Act of 1963. If it is not likely to be so time-barred, occasion for invoking Clause (a) of See. 30 never arises but if, by application of Clause (a) of Section 30 some hardship is likely to arise. the proviso takes care of such extreme cases.

20. On the above reasoning, Clause (b) of Section 30 would apply only if, on the date when the application was filed, the application would be barred by applying the provisions of the Limitation Act of: 1963 and if it is not so barred, Clause (b) of S. 36 is not to be invoked at all. If, however, the period of limitation prescribed' by the Act of 1963 expires before the period of go days from the commencement of the Act, the period of limitation would be go days or the period under the Act of 1908, whichever period is the shorter period. Nobody who has allowed the longer period of limitation prescribed in the 1908 Act to expire can ,Complain if his application is barred on the date when the Act of 1963 came into force. It is only to alleviate hardship that Section 30(b) is made applicable and not to work greater hardship. Under these circumstances, as in the instant case the period of limitation would expire in 1967. that is the twelve years' period of limitation would expire in 1967. the application filed on June 15, 1964 cannot be said to be time-barred. The period of limitation of twelve years for the instalment due in 1955 expired in 1967 and hence the argument of Mr. Zaveri cannot apply at all.

21. In our opinion, S. 30 of the Act of 1963 deals with two situations: (1) It deals with a situation when a suit, appeal or application is barred under the Act of 1963 on 1-1-1964 though if the Act of 1908 had remained in force it would not have been time-barred: (2) Section 30 also contemplates a situation where, on the commencement of the Act of 1963, a suit, appeal or application not time-barred under the Act of 1963, but is likely to be time-barred before the period of seven years in the case of a suit and before the expiry of 90 days; in the case of an appeal or application, if the provisions of the 1963 Act are applicable; then also Clause (a) or Clause (b) of S. 30 would be applicable. We would add this further clarification to the observations of the Patna High Court with which We are otherwise in complete, agreement.

22. Under these circumstances, this contention of Mr. Zaveri fails and is rejected.

23. Our conclusions may now be summarised as follows :-

(1) The Debt Adjustment Court functioning under the B.A.D.R. Act is a Civil Court :

(2) The award of the B.A.D.R. Court, whether in a money matter or in a matter in which possession is directed to be given, is an order :

(3) Such an order is an order capable of execution:

(4) Under the Limitation Act of' 1908, Art. 182 applied to possession awards, whereas for money awards, there was no period of limitation-

(5) Under, the Limitation Act of 1963, Art. 136 applies to all award: of the &A.D.R.; Court, irrespective of the fact whether the award in question is a money award or a possession award:

(6) The provisions of S. 30 of the Limitation Act can be invoked only when, under the 1908 Act, the suit, appeal or application is not time-barred on or be fore Ist Jan., 1964. They come to the rescue of the party concerned only when, because of the shorter period of limitation prescribed under the Act. of 1963 as compared to the period prescribed under the Act of 1908, the suit is time-barred under the 1963 Act on or after Jan. 1, 1964 or to those cases where the period of limitation prescribed under the 1963 Act expires, in the case of suits before the expiry of seven years and, in the case of appeal or application, within ninety days of Jan. 1, 1964. In those cases where S. 30 can, be invoked, it is the period of limitation prescribed under the 1908 Act or the period of seven years in the case of suits or ninety days in the case of appeals and applications, which ever expires earlier, that would be applicable.

24. Under these circumstances, we hold that the decision of the Full Bench of our High Court in Zabuben v. Mansukhlal : AIR1978Guj36 (supra) is no longer good law in so far as it says that application for execution under S. 30(3) (III) of the B.A.D.R. Act is not to be governed by the procedure and the manner laid down for execution of a decree. We also hold that the decision in Zabuben v. Mansukhlal is no longer good law in so far as it followed Athani Municipality Labour Court, Hubli : (1969)IILLJ651SC and held that, even under the Act of 1963, the words 'under the Code of Civil Procedure' have to be read in the residuary Art. 137. In so far as the Full Bench held that no Article of Limitation Act of 1908 would apply to execution of an award made under the B.A.D.R. Act, we are unable to - agree with that conclusion; we hold that the proposition applies only to an application for execution of an award in so far as the award was for payment of money and that the proposition would not apply so far as the application is for execution of an award directing handing -over of possession of any property.

25. The matter will now go back before the learned single Judge for being disposed- of in accordance with law as explained hereinabove.

26. Answer accordingly.


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