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Patel Shambubhai Motidas and ors. Vs. Khodabhai Shivdas and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtGujarat High Court
Decided On
Case NumberCivil Revn. Appln. No. 58 of 1978
Judge
Reported inAIR1981Guj80; (1980)2GLR63
ActsBombay Agricultural Debtors' Relief Act, 1947 - Sections 38; Limitation Act, 1908 - Schedule - Article 182
AppellantPatel Shambubhai Motidas and ors.
RespondentKhodabhai Shivdas and ors.
Appellant Advocate P.T. Jasani, Adv.
Respondent Advocate P.B. Maimudar, Adv.
Cases ReferredKeshavlal v. Atmaram
Excerpt:
- - the board also ordered that if the debtors failed to pay any instalment in the prescribed period of time, they should pay four per cent interest from the date of default. it is submitted by the present applicants that on the debtors' failure to' pay any instalment, the creditors, the applicants herein, had filed execution proceedings for recovering rs. majmudar, who appeared for the opponents, fairly submitted before me that the ruling relied upon by the learned assistant judge was no longer good law in view of the subsequent full bench decision in the case of ramanbhai trikamlal v. mansukhlal (air 1978 guj 36 (fb)) is no longer good law. ) at kalol was clearly time-barred......the time was sought to be extended when a prayer was made for passing the final decree. both the learned judges took the view that under order 34, rules 7 and 8, the debtor had an opportunity to make the payment even after the time-limit prescribed in the preliminary decree had expired, if within that period the mortgage had not applied for debarring the plaintiff, that is the debtor from redeeming the mortgaged property or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of rule 8. these two judgments however would not apply mr. majmudar that the award passed by the b.a.d.r. board was in the nature of a preliminary decree for redemption and therefore by parity of reasoning order 34, rules 7 and 8 mutatis mudandis would apply. the.....
Judgment:
ORDER

1. The applicants herein were the opponents in B. A. D. R. Darkhast No. 5/70 which was filed in the Civil Court (J. D.) at Kalol. For the reasons stated in his order dated 30th April, 1976, the learned Civil Judge held, inter alia, that the execution application was time-barred and consequent1y he dismissed the same application for execution.

2. Being aggrieved by that order, the original judgment-debtor, who was the applicant in Darkhast No. 5/70, filed Reg. Civil Appeal No. 103/76 in the Court of the learned Assistant Judge at Mehsana. The learned Assistant Judge, by his order dated 16-12-1977 allowed the appeal of the original judgment-debtor and set aside the order of the learned Civil Judge (J.D.) by which he had dismissed the Execution Application and the learned Assistant Judge directed the learned Civil Judge (J.D.) to proceed with the execution proceedings.

3. Being aggrieved by that order of the learned Assistant Judge, the original judgment creditor who was opponent in Darkhast bearing No. 5/70, has preferred this Civil Revision Application.

4. The facts which led to the filing of the execution proceedings by the opponents herein may briefly be stated as follows:-

The deceased Khodabhai Shivabhai and deceased Keshavlal Shivabhai and Vithaldas Shivabhai (now deceased) were the original debtors and they had led an application under the Bombay Agriculture Debtor's Relief Act, 1947 (hereinafter referred to as 'B. A. D. R. Act') before the B. A. D. R. Board which was numbered as 1269/50 (2269/50?) and Index No. 4531/50 against their creditors, one Patel Harjivandas Shankerdas of Paliad and the present applicants Patel Shambhubhai Motidas, and one Patel Nathubhai Motidas, who is since deceased and is represented in this application by his legal heirs and representatives. I may in passing note on the basis of the submissions made before me by Mr. Jasani, the learned advocate for the applicants, that after the award was passed by the B.A.D.R. Board, Patel Harjivandas Shankerdas of Paliad had settled with the original judgment-debtors so far as he was concerned and therefore thereafter he is not a party to the subsequent proceedings. The B. A. D. R. Board scaled down the claim of the present applicants from Rs.4700/- to 4200/- and the debtors were granted annual instalments of Rs.525/- and the first instalment was to be paid on Vaisakh Sud 3 of S. Y. 2010 and the remaining annual instalments were to be paid by them on every Vaisakh Sud 3 of the succeeding years and it was further ordered that the creditors shall hand over the possession of the mortgaged land to the debtors within one month of the payment of the first instalment. The Board also ordered that if the debtors failed to pay any instalment in the prescribed period of time, they should pay four per cent interest from the date of default. As observed above the debtors sold out the agricultural, lands which were in the hands of Patel Harjivandas Shankerdas thereafter, and did not pay any instalment to the creditors the present applicants, the mortgaged lands were kept under a charge. It is submitted by the present applicants that on the debtors' failure to' pay any instalment, the creditors, the applicants herein, had filed execution proceedings for recovering Rs. 1575/-, being the arrears of instalments for three, years, but the further execution proceedings were withdrawn as the, debtors informed them that they did not intend to execute the award to take possession of the mortgaged land. It is further submitted that the debtors had filed application in the year 1969 for the execution of the award but it was dismissed for default and then the Darkhast bearing No. 5/70 was filed the debtors had deposited Rs.4, 200/-being the total amount of the debt in the Civil Court (J. D.) at Kalol. It is submitted by the present applicants that even when the debtors deposited Rs.4200/- being the arrears of the total instalments, they did not deposit the interest amount which was to be calculated at 4 per cent from the date of default and which amounted to Rs.3, 000 by that time.

5. The subsequent proceedings between the parties have been outlined above.

6. The learned Assistant Judge relied upon a decision in the case of Zabuben Deuji v. Mansukhlal Bhagwandas reported in (19771 18 Guj LR 840: AIR 1978 Guj 36) (FB) and held that the, Indian Limitation Act, 1908 had no application to the facts of the present case and that the learned Civil Judge had committed an error in dismissing the Darkhast as time-barred.

7. The question which I am called upon to decide in the present revision Application is whether the application for the execution of the order of the Board under the B. A. D. R. Act, namely Darkhast No. 5/70 is barred by limitation or not,

8. The learned Assistant Judge, as observed by me earlier, relied upon the above referred ruling in coming to the conclusion that the application for execution of the award was not time barred as the Indian Limitation Act, 1908 did not apply to it. Mr. Majmudar, who appeared for the opponents, fairly submitted before me that the ruling relied upon by the learned Assistant Judge was no longer good law in view of the subsequent Full Bench decision in the case of Ramanbhai Trikamlal v. Vaghri Vaghabhai Oghabhai reported in (1979) 20 Guj LR 268: (AIR 1,979 Guj 149). The learned Chief Justice in paragraph 23 of the judgment summarized the conclusions reached by the Full Bench as under:-

'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 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, Article 182 applied to possession awards whereas for money awards, there was no period of limitation:

5. Under the Limitation Act of 1963, Article 136 applies to all awards of the B. 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 before lst January 1964. They come to the rescue of the party concerned only when, because of the shorter period of limitation prescribed under e ct 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 January 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 January 1, 1964. In those cases where Section 30 can be invoked, it is the period of limitation prescribed tinder the 1908 Act or the period of seven years in the case of suits or ninety days in the case of appeals and applications whichever expires earlier that would be applicable.'

In Conclusion No. 4, it is concluded that under the Limitation Act of 1908, Article 182 applied to possession awards. Whereas for money awards, there was no period of limitation. It is not in dispute before me that the award which was sought to be executed was a possession award. Art. 182 of the Limitation Act of 1908 would therefore have application. Incidentally, I may further note that from the certified copy of the application for execution, it appears that the award was passed on 30-3-1953 and the darkhast application from which the present Revision application has arisen was filed on 10th April, 1970. Under Art.182 of the Limitation Act, the period of limitation for the execution of a decree or order of any Civil Court not provided for by article 183 or by Section 48 of the Civil P.C.1908, was three years; or where a certified copy of the decree or order has been registered, six years. The commencement of the period of limitation is prescribed in the third column of Art. 182 and so far as it is relevant for us the commencement of the period of limitation was from the date of the decree or order. The period of limitation for filing the application for execution of the award had therefore expired after three years after the award was passed on 30-3-l953. It is in terms stated by this Full Bench decision that the decision in Zabuben v. Mansukhlal (AIR 1978 Guj 36 (FB)) is no longer good law. The learned Assistant Judge had relied upon the decision in Zabuben v. Mansukhlal in reaching the conclusion in his judgment that the provisions of the Indian Limitation Act, 1908 would not apply to an application for execution of an award made under the B. A. D. R. Act. His conclusion must now be held to be erroneous in view of this later Full Bench ruling. In that view of things, the order passed by the learned Assistant Judge in Appeal No, 103/76 is required to be set aside. The application for execution of the award before the Civil Judge (J. D.) at Kalol was clearly time-barred. Incidentally, it was not argued before me that the concerned award was not an award for possession and that it was in the nature of a money decree. I am not required therefore to deal with that sort of an argument.

9. Mr. Majmudar then invited my attention to an unreported judgment of M. C. Trivedi J., in Second Appeal No.612 of 1969 and another judgment of Talati J., in Second Appeal No.497 of 1975. These two rulings do not apply to the facts of the present case. The facts in both these judgments were that there was a preliminary decree passed for redemption and the payment was not made within the time prescribed by the preliminary decree and later on the time was sought to be extended when a prayer was made for passing the final decree. Both the learned judges took the view that under Order 34, Rules 7 and 8, the debtor had an opportunity to make the payment even after the time-limit prescribed in the preliminary decree had expired, if within that period the mortgage had not applied for debarring the plaintiff, that is the debtor from redeeming the mortgaged property or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of Rule 8. These two Judgments however would not apply Mr. Majmudar that the award passed by the B.A.D.R. Board was in the nature of a preliminary decree for redemption and therefore by parity of reasoning Order 34, Rules 7 and 8 mutatis mudandis would apply. The creditors had not applied for a relief in the nature of for enclosure, nor for sale of the charged property and as the Court had accepted the amount deposited by the judgment-debtor, the delay must be deemed to have been condoned by the Court in which the application for the execution of the award was filed. The argument has no merit. The concerned award passed by the B. A.D.R. Board cannot be termed decree in the first place and much less can it be said to be a preliminary decree. In the summary of the conclusions reached in the case of Ramanbhai Trikamlal v. Vaghabhai Oghabhai (AIR 1979 Guj 149) (FB) (supra), it is found stated that 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. In the case of Zabuben Deuji v. Mansukhlal Bhagvandas (AIR 1978 Gu.1 36) (FB) (supra), a view has been expressed upholding the view taken in Keshavlal v. Atmaram, AIR 1967 Guj 101, wherein Bhagwati J. (as he then was) made the following observations: -

'It is clear that where an award is made by the Debt Adjustments 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 under Section 4 of the Act is not a suit and an award an the application would not, therefore, be a 'decree' within the meaning of Section 2 (2) of the Code.'

Further, the award can be executed straightway and in the nature of that award there is nothing to show that it is in the nature of a preliminary decree. Mr. Majmudar's argument must, therefore, be rejected. No further argument was advanced by Mr. Majmudar.

10. In the result, the revision application is allowed and the order of the learned Assistant Judge, Mehsana dt.16-12-1977 is set aside. The opponents shall bear the costs of the applicants for this revision application and shall bear their own.

11. Revision application allowed.


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