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Zabuben Deuji and anr. Etc. Vs. Mansukhlal Bhagvandas Etc. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. Nos. 517 and 1512 of 1972
Judge
Reported inAIR1978Guj36; (1977)GLR840
ActsBombay Agricultural Debtors' Relief Act, 1947 - Sections 2 and 38(3); Limitation Act, 1908 - Schedule - Articles 181 and 182; ;Code of Civil Procedure (CPC), 1908
AppellantZabuben Deuji and anr. Etc.
RespondentMansukhlal Bhagvandas Etc.
Appellant Advocate Y.S. Mankad, Adv. in Civil Revn. Appln. No. 517 of 1972 and; A.K. A-Tanked, Adv. in Civil Revn. Appln
Respondent Advocate K.N. Mankad and; A.K. Mankad, Advs. in Civil Revn. Appln. No. 517 of 1972 and;
Cases ReferredNityanand v. L.I.C. of India
Excerpt:
(i) civil - award as decree - bombay agricultural debtors' relief act, 1947 and order 21 of code of civil procedure, 1908 - amount payable under decree made by civil court is to be recovered under procedure prescribed in order 21 - amount under award cannot be recovered as arrears of land revenue by collector - when order involves delivery of possession - part of award involving delivery of possession can be executed by court as being decree. (ii) execution of award - section 38 of bombay agricultural debtors' relief act, 1947 and article 181 of schedule to limitation act, 1908 - application for execution of award under section 38 different from procedure prescribed in code of civil procedure - article 181 has no application - no prescribed period of limitation is provided under..........has been made by the debtor voluntarily and for his benefit. section 32 provides for making an award. award has to be in the prescribed form and shall show therein particulars specified in the section. section 38 provides for registration of every award in the manner provided for the in chapter ii a, and sub-sec .(2) of section 32 such order shall on the application be executed by the cpuirt as if it were a decree passed by it. section 43 (2) provides for an appeal to the district court to be filed within 60 days from the date mentioned in the sub-section and then further provides that in computing the period of sixty days, the provisions contained, in s.4,5 and 12 of the limitation act, 1908 shall so far as may be apply. we may also take a note of .s.46 which provides that save as.....
Judgment:

D.A. Desai, J.

1. When Civil Revision Application No. 1512 of 1972 came up for hearing before S. H. Seth J. he referred the following four questions to a Division Bench:-

(1) Whether the award passed under the B.A.D.R. Act is deemed to be a decree under clause (iii) of sub-section (3) of Section 38 of that Act?

(2) Whether by virtue of the provisions of clause (iii) of sub-see. (3) of S. 38 of the B.A.D.R. Act whether in the instant case (sic) attracted the provisions of Art. 182 of the Indian Limitation Act, 1908?

(3) if answer to the second question is in the negative, whether it attracted Art. 1,81, residuary Article of the Indian Limitation Act 1908?

(4) If the award under the execution was not governed by any of the aforementioned provisions whether it was governed by any other provision of law relation (sic) to limitation?,

When the matter came up before a Division Bench misting of S. H. Sheth and C. V. Rane JJ. after referring to the ear lier judgments of the learned single judge of this High Court and judgment of the Division Bench of this High Court and the judgment of the Division Bench of the Bombay High Court, they considered it necessary to refer the matter to a still larger Bench to reconcile the conflict. That is how the matter has come up before this Full Bench.

2. As the questions herein raised also arose in Civil Revision Application N6 517 of 1970 (1972?) the same was directed to be heard with Civil Revision Application No. 1512 of 1972 and that is how the cognate matter also came up before us.

3. For a proper appraisal of the questions raised before us, it would be advantageous to refer to some relevant facts which transpire from the record in Civil Revision Application No. 1512 of 1972. One Chheda Akha Arja Arjan was the creditor of Barot Nagdan Parvat and his deceased brother Karsan Parbat. The debt -came up for adjustment under the relevant Debt Relief Act and award was made by the Debt Adjustment Court that the debtor should pay to Chheda Akha Arjan the -,creditor a sum of Rs. 1,63-50 P. and after 1-1-1957 the debtor would be entitled to recover possession of a field known as Bandhad! situate within the revenue limits. of Rav village on payment of first instalment of Rs. 100. It transpired before the Debt Adjustment Court that the field in question was mortgaged with possession with the father of creditor Chheda Akha Arjan and this debt was to be adjusted and by award debt was adjusted. Award was made on 26th December 1956. One of the co-debtors namely Karsan died and surviving debtor filed the execution application under the provisions of the Agricultural Debtors' Relief Act in 1968. The creditor resisted the application inter alia contending Ahat the application was -barred by limitation. In the meAntime the original creditor was dead and his heir was inipleaded as creditor.- The executing Court overruled all the objections raised by the creditor and held that the debtor was entitled to recover possession. An appeal was preferred by the creditor to the District Court Kutch at Bhuj being Appeal No. 2 of 1971. The District Judge dismissed the appeal and confirmed the order of the executing Court. The creditor preferred Revision Application to this High Court and as stated earlier, four questions formulated by the learned single Judge have been referred to this Full Bench.

4. The Inaterial question, is whether an application for execution of an award made under the B=Wmy agricultural De Belief Act. 1.947 (B.&D.;& Act for short) would be governed by Art. 181 or 182 of the limitation Act, 19M and incidentally by corresponding articles of the limitation Act.1963 Article 182 Limitation Act 1908 provides a Period Of Limitation of three years or a where a certified copy of the decree or order of any Civil Court not provided by Art, 183 or by S,48 of the Civil P. C. has been registered, six years. Article 183 provides a period of limitation of 12 years 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. Article 181 is a residuary article which provides a Period of limitation of three Years in respect of an application for which no period of limitation is provided for elsewhere in the Schedule or by S 48 of the Civil P. C, Article 136 of the Limitation) Act, 1963 provides a period of limitation of twelve years for the execution of any decree (other than -a decree ranting inamdatory injunction) or order of any civil court. Article 137 provides a period of limitation for an application for wt&-b no period of limitation is provided else-where in the MvWon in which the Article is placed. ft may be m2entioned that it is placed in Third Division headed APPLICAITONS.

5. In Civil Revision Apphas. Nos.189 and 190 of 1962 decided on 15th April.1966 (Guj) Divan J. (as he theen was).it was held that the application for execution of an award under the B.A.D.R.Act would be governed by Art. 182 of the Limitation Act, LQS& Same view was' follwed by ?A.D Desai J. in Civil Revision Applns. Nos.504 and 505 of 1970 decided on 9th July, 1973 (GuJ)

6.. The question is whether an award made under the B.AD.R. Aet in a 'decree'. 'Award' has been defined in S. 2 (1)to mean act award made under sub-section (4) Of S. 8 or S. 9, 32 or 33 or asomfirmed or modified by the Court inappeal. Section 4 provides for making an application either by the creditor or by the debtor for adjustment of debts, S. 5 casts an obligation on every creditor and debtor to file a true and correct statement before Court. Section 8 provides for recording settlements in respect of the dispute about adjustment of debts. Section 9 provides for making an award on the basis of the settlement., if the Court is satisfied that settlement has been made by the debtor voluntarily and for his benefit. Section 32 provides for making an award. Award has to be in the prescribed form and shall show therein particulars specified in the section. Section 38 provides for registration of every award in the manner provided for the in Chapter II A, and sub-sec .(2) of Section 32 such order shall on the application be executed by the Cpuirt as if it were a decree passed by it. section 43 (2) provides for an appeal to the District Court to be filed within 60 days from the date mentioned in the sub-section and then further provides that in computing the period of sixty days, the provisions contained, in S.4,5 and 12 of the Limitation Act, 1908 shall so far as may be apply. We may also take a note of .S.46 which provides that save as otherwise expressly provided in the Act, the provisions of the Civil P.C. 1908 shall apply to all proceedings under the Chapter.

7. The question posed is whether any period of limitation is prescribed for executing award. It may be made clear that B.A.D.R. Act does not provide for any period of limitation for executing the award.

8. Two question posed before us are (i) As the award is executable as a decree, art.182 of the Limitation Act, 1908 would be attracted; and (ii) in any case in the absence of application of any specific article, residuary Art.181 would be attracted and limitation would be of three years commencing from the time the right to apply accrues.

9. On the first question, it must b6 conferred that there are three earlier decisions of this Court in which it has been in terms held that Limitation Act applies to 'the application for execution of the award and limitation would be of 12 years,; and in reaching the conclusion reliance has been pledged on the language of S& 36, A 43) 0H) read with S. 4& Three decisions are those rendered by Divan J. (as he then was) in Civil Revision Appns. Nos. 189 and 190 of 1962 decided on 15th April IM, by S. H. Sheth J. in Civil Revision Appln. W& ,652 of 1967 decided on 12th December, 1969, and A. D. Desai J. in Civil Reviskn Apphis. N4w. 5M and 505 of 1970 decided on 9th July 1973. With greatest respect we may say that these decisions overlook the obvious in See. 38 (3) 09) that even by fiction award is not to be deemed to be a decree but if the award directs ernonggt other things, delivery of possession that part of the award directing delivery of possession is to be executed as a decree. By fiction of low 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) (iii) and the fiction is limited to the mode prescribed for delivery of possession in the Civil P. C AD the -awards under the Act are not to be executed as a decree. nor are they executable as decree, Mode of exetution of an award is provided for in S (3) fi) end fifi) and briefly it pro vides 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 civil court it is to be recovered by the procedure prescribed in Order XXT 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 (M) of sub-see. (3) enacts a fiction that for delivery, of posession 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. Atmarain, AIR 1967 Gui 161,1h 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'Adjusbnent Court In an application or adjustment of debts; under Fx 4 of the A4 such anurd would not be a deerm 11or though it would be the formal expression of an adjudwstion which conclusively dekernabies the r4hts of the parties with regard to all or any of the matters im cactroversy between them, such adjudication would not be in a suit. An application, for adjustment of debts under SL 4 of the Act is nut a suit and an award on the application would not, thereftwea, be a 'decree? within the meaning of & 2 (2) of the Code.

At another slage it is also observed: 'W the award were a decree within the meaning of the Code, it would have been totally unnecessary to use the words 'as ff it were a decree passed by We therefore, it is crystal clear that the award made by the Debt Adjustment Court Js not a decree. An exactly identical view has been taken by the Bombay High Court,in Ganesh Vinayak v. Bhau ,Rabbana, (19,601 71 Bom LR 294. The Division Bench has in terms held that the Court dealing with applications under the E.A.D.R. Act is not a civil court and -as Art. 1,82 applied to -applications for execution of a decree or order of any civil court it could not apply to application for execution of the award, the award itself not being called a decree or order of civil court. It was held that Axt. 182 of the Limitation Act, M71 is not applicable to an application for execution of an -award. As the award is not a decree, for its excution Art. 736 of the Limitation Act 3. 33 or for that matter Art. 192 of the Limitation Act, 19' would not be attracted.

10. The real controversy centres round the second question whether an application for execute',' of the award for which no period of 1,vnita is proved, would be governed by residuary Art- 137 Of the Limitation Act, 1963, ox Art. 131 Of t-he Limitation Act, 1909. Article 137 Prescribed a period of hesitation for three years in respect of any other application for which mo period of lirnit8tion is proved elsewhere in the Division meaning thereby in Division No.III headed 'Applications. Art. 181 of the Limitation Act, 1968 prescribed a period of hesitation of three years jar applications for which no period no period of limitation is Provided elsewhere in the sehedule i.e. Schedule 1, or by S. 48 of the Civil P. C., 1969. There WM serious cleavage of opinion between different Courts -about the scope and ambit of Article 181 and its corresponding Art. 137. One view was that Art. 181 would govern only applications under the Civil P. C. and no- other applications; and other view was that it would govern applications not merely those under the Civil P. C. but even other applications in respect of which there was no other provision in the Division headed APPLICATIONS. The earliest decision with respect to the controversy is of Bai Maneklal v. Manekji Kavasji, (A83) ILR 7 Bom 21.3. in which the view taken was 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. The question came up before the Supreme Court first in Shah Mulchand & Co. v. Jawahar Mills Ltd., AIR 1953 SC 93. After referring to Privy Council's decision in Hansraj Gupta v. Official Liquidator and several other decisions bearing on the subject, it was observed that this long catena of decisions may well be said to have, -as it were, added the words, tunder the Code' in the first column of that Article (Art. 181). However, the matter was not finally concluded by the Supreme Court and further argument on the subject was kept open. The problem again figured before the Supreme Court in Bombay Gas Company v. Gopal Bhiva : (1963)IILLJ608SC , in which the Supreme -Court treated it as well settled that Article 181 applies only to applications which are made under the Civil P. C., and so its extension to applications made under S. 33-C(2) of the Industrial Disputes Act would not be justified. In reaching this conclusion, ratio in Sha Mulchand & Co.'s case (supra) was affirmed. The very question again came up before Supreme Court in Wazir Chand v. Union of India : [1967]1SCR303 . The question figured in the context of an application under S. 20 of the Arbitration Act and argument in terms was that -application would be governed by Art. 181. Negativing the argument, while recognising the fact that by amendment made by the Arbitration Act 10 of 1940, Arts. 158 and 178 were modified and by this modification 'the reason which persuaded the Courts to hold that the expression 'under the Code, was deemed added to Art. 181 has now disappeared, but on that account the expression applications for which no period of limitation is provided elsewhere in this Schedule' in Art. 181 cannot be given a connotation different from the one which prevailed for nearly 60 years before 1940.' The view that Art. 181 applies only to applications under the Code was reaffirmed.

11. After the introduction of the Limitation Act, 1963 Art. 137 though placed in the Division headed 'APPLI-, CATIONS, forms a separate part. The question -arose whether this change in the language and placement of Art. 137 would make any difference in its interpretation especially on the question whether the article applies like its predecessor Art. 161 to applications under the Code of Civil Procedure only or any other application in a -proceeding to which Limitation Act would apply by reference to S. 3 and the provisions contained in Ss. 4 to 24 of the Limitation Act, 1963. This very specific question came in for decision before the Supreme Court in Athani Municipality v. Labour Court, Hubli, AIR 1969 SC 1335. The argument was that Art. 137 would govern applications under S. 33-C(2) of the Industrial Disputes Act. An attempt was to reopen the question specifically settled on this point in Bombay Gas Company Limited : (1963)IILLJ608SC . The argument turned upon the construction of Art. 137, its placement and difference in the language when compared with Art. 182. The contention was negatived observing that the view expressed by the Supreme Court with reference to Art. 181 must be held to be applicable even when considering the scope and applicability of Art. 137 in the new Limitation Act of 1963. After noting difference in language, its placement in the Division and other relevant considerations, it was held that 'even further alteration made in the articles contained in the third division of the schedule to the new Limitation Act containing references to applications under the Code of Criminal Procedure cannot be held to have materially altered the scope of the residuary Art. 137 which deals with other -applications. It was held that the intention of the legislature was not to drastically -alter the scope of this article so as to include within it all applications, irrespective of the fact whether they had any reference to the Code of Civil Procedure. The ratio of the decision is that even Art. 137 would apply' to applications under the Civil P.C. only. its scope is not further extended. In terms it was held that, article dow bat apply to application under 2 S. 33-C(2) of the Industrial Disputes Act. Last in this series of decisions is one in Nityanand v. L.I.C. of India : (1969)IILLJ711SC , where again the question of application of Art. 137 in the context of application under S. 33-C(2) of the Industrial Disputes Act surfaced before the Supreme Court. After referring to earlier decisions bearing on the subject and not differing there from the point before the Court,was disposed of on another ground namely that Art. 137 only contemplates applications to Courts and Labour Court is not a court contemplated by the Article and therefore, Article 137 would not apply.

12. It would thus appear that the view expressed by the Supreme Court in terms is that Art. 181 of the Limitation Act, 1908 only applies to applications under the Code of Civil Procedure and (despite?) the difference in the language of Art. 137 of the Limitation Act, 1963, its placement in the Division and other relevant considerations, the view remained the same that Art. 137 would only cover applications under the Civil P. C.

13. An application for execution of an award to be made under S. 38 of the B.A-D.R. Act would not be an application under the Civil P. C. Obviously Art. 181 would not apply and no other article was relied upon to show that any particular period of limitation would apply to it. Therefore with utmost respect to our learned Brothers'who held to the contrary in the earlier decisions referred to in this judgment, we are of -the opinion that an application for execution of an award made under the B.A.D.R. Act would not be governed.-,by Art. 181 of the Limitation Act. 1908 and no other -article of Limitation Act would apply and therefore, no period of limitation is prescribed for its execution. The application tar execution of an award cannot be rejected on the ground that ft is barred by limitation.

14. Another question was that the Court set up under the B.A.D.R. Act Is not a Civil Court and in view of the provisions contained in Ss. 4, 5 and other relevant provisions of the Limitation Act, 1963, Limitation Act would not apply to the proceedings under the B.A. D.R Act. Undoubtedly Sections 3, 4 and 5 on the Limitation Act, 1963 refer to proceedings in the Court. Expression

15. Our answer,therefore, to the questions posed is as under:-

(1)An award made by a Court set up under the B.A.D.R. 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 Civil P.C.for delivery of possession the answer has to be understood to mean that by the provislions, contained in Section 38 (3) (iii) the procedudre prescribed for delivery of possession in the Civil P.c. 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 fosr execution of award would not be governed by Art.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 Act1908 would not apply to an application for execution of the award because that article in its application is confined to application under the Civil P.C. in respect of which no other provision is made in the Schedule of the Limitation Act, 1908.

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

16. With these answers, the matter will go back to the learned single Judge for disposal of each case. There shall be. no costs of hearing before the Full Bench.

17. Order accordingly.


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