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Smt. Daya Bai Vs. Badri Narain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 157 of 1968
Judge
Reported inAIR1970Raj67; 1969()WLN46
ActsDebt Law; Rajasthan Relief of Agricultural Indebtedness Act, 1957 - Sections 5(1), 6, 16 and 21; Code of Civil Procedure (CPC) , 1908 - Order 4, Rule 1
AppellantSmt. Daya Bai
RespondentBadri Narain
Appellant Advocate Pan Raj Bhansali, Adv.
Respondent Advocate S.N. Chhangani, Adv.
DispositionPetition allowed
Excerpt:
.....down that the court shall abate the suit if it is satisfied that an application to the debt relief court under section 6 has been made and admitted and is..........pending before him. 2. during the pendency of the suit the defendant filed an application in the debt relief court under section 6 of the rajasthan relief of agricultural indebtedness act, 1957. that application was not admitted, but notices were issued to the creditors to show cause why it should not be admitted. the question as to whether or not the defendant is a debtor within the meaning of the act is pending investigation before the debt relief court. during the pendency of that application the defendant filed an application before the civil court purporting to be under section 21 of the act in which a prayer was made that the plaintiff be asked to prosecute her remedy before the debt relief court as the civil court had ceased to have any jurisdiction. 3. on this application the.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by the plaintiff against an order of Additional Munsif No. 1, Jodhpur, abating her suit for recovery of money pending before him.

2. During the pendency of the suit the defendant filed an application in the Debt Relief Court under Section 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957. That application was not admitted, but notices were issued to the creditors to show cause why it should not be admitted. The question as to whether or not the defendant is a debtor within the meaning of the Act is pending investigation before the Debt Relief Court. During the pendency of that application the defendant filed an application before the Civil Court purporting to be under Section 21 of the Act in which a prayer was made that the plaintiff be asked to prosecute her remedy before the Debt Relief Court as the Civil Court had ceased to have any jurisdiction.

3. On this application the learned Additional Munsif abated the suit holding that because the application of the defendant under Section 6 has been registered and notices have been issued to the creditors, it should be deemed to have been admitted. This order is clearly erroneous. Section 5 (1) (i) lays down that the Court shall abate the suit if it is satisfied that an application to the Debt Relief Court under Section 6 has been made and admitted and is pending. It is clear from the wordings of this provision that before a suit can be abated the application should not only have been made but should have been admitted and should be pending. It is also clear that the Legislature has drawn a distinction between the making of application and admission of it. As soon as an application is made it has to be registered and the fact that it has been registered does not mean that it has been admitted. Section 16 of the Act runs as follows :---

' 'Application of Civil Court procedure to Debt Relief Court' -- The Debt Relief Court, in regard to proceedings under this Act 'shall so far as practicable' have the same powers and shall follow the same procedure as it would have and follows if it were a Court of original civil jurisdiction.'

(Underlining (here into ' ') is mine.)

4. The underlined words go to show that the procedure to be followed in the case of an application under the Debt Relief Court is not exactly the same as the procedure to be followed by a Civil Court when a plaint is filed. In the case o a suit instituted on a plaint there is no question of not admitting the suit. In the present case the Debt Relief Court has ex-pressly declined to admit the application,but has issued notices to the creditors to decide the question whether or not it should be admitted. The order abating the suit is therefore, erroneous. Section 21 lays down that the jurisdiction of the Civil Court is barred in respect of any matter pending before the Debt Relief Court. At present the matter pending before the Debt Relief Court is only whether the application of the defendant should be admitted. The jurisdiction of the Civil Court is therefore, not barred.

5. It will however, be open to thedefendant to make an application for staying proceedings in the Civil Court till his application before the Debt Relief Court is either admitted or dismissed.

6. The revision application is accordingly allowed and the order of the trial Court abating the suit is set aside. In the circumstances of the case, I leave the parties to bear their own costs.


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