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Makhanlal Roy Pramanick and ors. Vs. Pramathanath Basu and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtKolkata High Court
Decided On
Case NumberCivil Revn. No. 336 of 1951
Judge
Reported inAIR1953Cal50,56CWN770
ActsDebt Law; ;Bengal Agricultural Debtors Act, 1936 - Sections 37A(8) and 45; ;Limitation Act, 1908 - Section 29(2) - Schedule - Article 181
AppellantMakhanlal Roy Pramanick and ors.
RespondentPramathanath Basu and ors.
Appellant AdvocateSarat Chandra Jana and ;Akshay Charan Pramanik, Advs.
Respondent AdvocateHiralal Chakraborty, ;Manindra Kr. Ghose and ;Gourhari Mitra, Advs.
Cases ReferredNandalal v. Dinendranath
Excerpt:
- .....of the appeal.9. mr. jana, learned advocate for the petitioner, raised three points : (1) article 181, limitation act did not apply and there was no limitation for obtaining relief under section 37a (b) of the act; (2) even assuming that article 181, limitation act was applicable, the proceedings under section 37a of the act were pending till 15-6-1948, and section 52 of the act extended the period from 28-10-1945, till 15-6-1948, and the prayer for relief under section 37a (8) of the act was consequently saved from the bar of limitation, and, (3) assuming that art, 181, limitation act applied, time did not begin to run till 15-6-1948, when the final order was made in the proceedings under section 37a of the act.10. i shall take up the above points in the order mentioned above......
Judgment:

G.N. Das, J.

1. This rule which was obtained by the judgment-debtors arises out of proceedings-under e. 37A, Bengal Agricultural Debtors Act, 1935, hereinafter called the Act,

2. In execution of a decree for arrears of rent obtained by opposite party No. 1, the latter auction-purchased the disputed property on 16-5-1939.

3. After the enactment of Act II B. C. of 1942' which added Section 37A to the Act, the petitioners initiated proceedings under the section before the Debt Settlement Board, Tamluk.

4. On 28-10-1945, the Board made an award under Section 37A (5) of the Act. The award recites that as the applicants, the decree-holders, the landlords and the mortgagees have failed to come to an amicable settlement, the Board has determined the debt under Section 37A (5). The award was drawn up in Form No. 19 (B), Schedule (ka) of the award gave a description of the debtors, Schedule (kha) (1) that of the decree-holders, Schedule (kha) (2) that of the mortgagees which was blank in the present case, Schedule (ca) gave particulars of the decree, Schedule (Gha) particulars of that debts of the debtors, Schedule (una) a description of the properties to be restored to the possession of the debtors.

5. Schedule (Gha) stated that the decretal dues of the opposite party No. 1, (decree-holder and auction-purchaser) amounted to Rs. 1,595-5-6 pies only, that the annual income of the property sold was Rs. 511 and that the opposite party No. 1 had realised Rs. 3,066 and nothing was due to the opposite party No. 1.

6. The award was presented for registration on 2-3-1946, and was registered on 13-3-1946.

7. It' appears that on 15-6-1948, the records were put up before the Special Officer, D. C. Tamluk. The Officer recorded the following order on that date:

'The records were found after the investment of powers under Section 7. On an examination of the records it appears that the previous Board has disposed of the case and made an award. It appears that the award has not been registered and that the time for registration has expired. In these circumstances, this case is disposed of on maintaining the award of the Board. The parties may be informed and the records may be sent to the Record Room after proper classification.'

8. On 17-1-1950, the petitioners presented a copy of the award to the First Court of the Munsif, Tamluk, for relief under Section 37A (8) of the Act. The opposite party No. 1 contested the prayer on the ground of limitation. The learned Munsif gave effect to the objection raised by the opposite party No. 1 and refused the prayer of the petitioner on the ground of limitation. The petitioners preferred an appeal before the District Judge who affirmed the decision of the Munsif. The learned District Judge while dismissing the appeal expressed a doubt about the competency of the appeal.

9. Mr. Jana, learned Advocate for the petitioner, raised three points : (1) Article 181, Limitation Act did not apply and there was no limitation for obtaining relief under Section 37A (B) of the Act; (2) Even assuming that Article 181, Limitation Act was applicable, the proceedings under Section 37A of the Act were pending till 15-6-1948, and Section 52 of the Act extended the period from 28-10-1945, till 15-6-1948, and the prayer for relief under Section 37A (8) of the Act was consequently saved from the bar of limitation, and, (3) Assuming that Art, 181, Limitation Act applied, time did not begin to run till 15-6-1948, when the final order was made in the proceedings under Section 37A of the Act.

10. I shall take up the above points in the order mentioned above. The main question for consideration is whether Article 181, Limitation Act applies to a proceeding for relief under Section 37A of the Act. The first question is whether the Indian Limitation Act is at all applicable to proceedings under the Bengal Agricultural Debtors Act. Section 29, Limitation Act makes that Act applicable to proceedings under other Acts unless the applicability thereof is expressly excluded. Section 45, Agricultural Debtors Act excludes only the Code of Civil Procedure and the Indian Evidence Act. It follows, therefore, that Article 181, Limitation Act is not excluded in proceedings under the Bengal Agricultural Debtors Act in the absence of an express provision. The question, however, remains whether the said section is attracted to a proceeding under Section 37A (s), Agricultural Debtors Act.

11. Article 181 is one of the Articles in Schedule l, 3rd Division, which deals with applications. All the articles in the 3rd Division commencing with Article 158 down to Article 183 deal with cases where the Court has to be moved by an application which is required to be filed under the express provision of the relevant Statute. None of these Articles deal with eases where no application is necessary to be filed and where the Court is asked to do an act which it is bound to do and which it has no discretion to refuse to do. Section 37A (8) runs as follows :

'The debtor may present a copy of the award made under Sub-section (5) to the civil Court or Certificate Officer at whose order the property was sold and such Court or Certificate Officer shall thereupon direct that the sale be set aside, that the debtor together with any person who was in possession of the property sold or any part thereof at the time of delivery of possession of such property to the decree-holder as an under-raiyat of the debtor and who has been evicted therefrom, by reason of such sale be restored to possession of the property and with effect from the 1st day of Baisak next following or the 1st day of Kartick next following whichever is earlier.'

12. Neither the sub-section nor the rules framed under the Act speak of the making of an application by the debtor. The debtor has merely to present a copy of the award. No time limit has been prescribed for such presentation. On such presentation the civil Court or the Certificate Officer is bound to act as provided in the sub- section. It is significant to note that the award contains all the materials which may be necessary for the Court or the Certificate Officer to know before action can be taken in terms of the subsection.

13. There is no express provision either in the Act or in the Rules for a notice to be issued on the decree-holder auction-purchaser or the landlord or mortgagee before the Court or the Certificate Officer can take action under the sub-section. It has to be borne in mind that the restoration of possession is the main relief which has to be made in the original application under Section 37A (I) of the Act. A period of limitation for such an application is provided for in Section 37A (2) of the Act. Section 37A (8) only prescribed the extent of such relief and the procedure by which and the Tribunal by which the relief already prayed for in the application under Section 37A (1) will be worked out.

14. The contention of Mr. Chakraborty, learn-ed Advocate for the opposite party No. 1 that the presentation of the award should by implication be regarded as an application is opposed to the rule of construction applicable to cases of limitation, namely, that the Court ought not to put such an interpretation upon a Statute of limitation by implication and inference as may have a penalising effect unless the Court is forced to do so by the irresistible force of the language used. It is well settled that the Limitation Act, being an Act which takes away or restricts the right to take legal proceedings, must, where its language is ambiguous, be construed strictly i.e. in favour of the right to proceed.

15. The further contention of Mr. Chakraborty that if the operation of Article 181, Limitation Act is excluded in this case and if it is held that there is no period of limitation it will lead to great hardship, cannot be accepted. Statutes of limitation are, in their nature, strict and inflexible and in construing the provisions of such Statutes, equitable considerations are out of place and the strict grammatical meaning of the words is the only safe guide. In a case like the present an argument based on the ground of hardship comes with an ill grace from the decree-holder auction-purchaser.

On the making of an award under Section 37A (5) the decree-holder auction purchaser is under the law bound to restore possession to the judgment-debtor, and can hardly complain of any prejudice if the judgment-debtor makes a delay in presenting the award. In such a case the decree-holder auction-purchaser obtains the boon of delay which is so dear to him and if he is vertuously inclined there is nothing to prevent him from giving up possession. See Nagendranath v. Suresh Chandra, 59 Ind. App. 283 (p. c.). In these circumstances, I am of the opinion that the presentation of the award under Section 37A (8), Agricultural Debtors Act cannot be regarded as an application within the meaning of the word occurring in Article 181, Limitation Act and that the Article therefore does not apply to cases under Section 37A (8) of the Act.

16. The view taken by me is in consonance with the principles which underlie the cases of an application for the issue of a sale certificate, vide Vithal Janardan v. Vithojirao Putlajirao, 6 Eom. 686, where the learned Chief Justice laid stress on the fact that 'the provisions of the Limitation Act do not apply to applications to a Court to do what it has no discretion to refuse ....', or of an application for amendment of a decree, vide Kalu v. Latu, 21 cal. 259 at p. 260 where Banerji J. opined that 'there is no limitation for an application under Section 206, it being the duty of the Court to amend a decree under that section whenever it is found to be not in accordance with its judgment' or of an application by a decree-holder for certifying a payment made oat of Court under Order 21, Rule 2 (1), Civil P. C., vide Shri Prokash Singh v. Allahabad Bank Ltd., 56 Ind. App. 30 (p. c.) where Sir Lancelot Sanderson delivering the opinion of the Board stated the ratio decidendi in this following words:

'The rule imposes a duty upon the decree-holder to certify the payment and a duty upon the Court upon such certificate being given to record such payment.'

17. The' view taken by me is also supported by the fact that the Agricultural Debtors Act and the rules framed thereunder prescribe diverse periods of limitation in diverse cases but are silent as regards the period of limitation for the presentation of an award under Section 37A (8), Agricultural Debtors Act.

18. I shall now deal with certain cases cited by Mr. Chakraborty on behalf of opposite party No. 1. In the case of the Co-operative Credit Society Arunganan v. Chinna Swami Udayan, A. I. R. 1937 Mad. 31, Article 181, Limitation Act was held to be applicable to an application to enfore an award made by the Registrar, Co-operative Societies. But in that case Rule 5 (4) (b) framed under the Act expressly provided for the making of an application for the purpose of enforcing the award. The decision is therefore distinguishable. In the case of Asmatali Sharif v. Mujaharali Sardar, 52 cal. W. N. 64, Art, 181, Limitation Act was held to be applicable to proceedings under Section 26F, Bengal Tenancy Act. The decision is distinguishable on the ground that the proceedings 1 under Section 26F, Bengal Tenancy Act start on an application being filed by the eosharer tenant.

The case of Jatindranath Naskar v. Baharuddi Molla, 55 cal. w. N. 64 merely laid down that the procedure to be followed in proceedings under Section 37A (8), Agricultural Debtors Act is that prescribed in the Code as regards execution of decrees. This decision does not throw any light on the question before us. In the unreported case of Nandalal v. Dinendranath, decided on 19-1-1949 (cal.) Chakravarti J. merely held that the Court in proceedings under Section 37A (8) of the Act has jurisdiction to see what the award was and whether on the face of the award it did not affect their interests. This case also does not deal with the question which falls to be decided in the present case.

19. The view taken by me is in consonance with the opinion of Roxburgh J. in the case of Mrityunjoy Mukherji v. Ashutosh Thakur, S. M. A. 17 of 1949, D/- 3-5-1950 (cal.). The learned Judge held that the presentation of an award under Section 37A (e) cannot be regarded as the making of an application and that there is no period of limitation in such cases. I share the hope expressed by the learned Judge in that case that 'it is necessary that some provision should be made at some stage limiting the time within which such award may be presented to the Court of Certificate Officer for carrying out the provisions laid down in Section 37A (8) of the Act.'

The decision of Roxburgh J. in the above case was affirmed on 7-3-1951, in Letters patent Appeal No. 6 of 1950 but on a different ground. I am therefore, of opinion that the Courts below were wrong in holding that the application was barred by limitation.

20. In this view of the matter the other points raised by Mr. Jana need not be gone into. I may point out that Mr. Chakraborty did not dispute the competence of the present application on the ground that a second appeal lay to this Court.

21. The lower appellate Court seemed to be in doubt on' the question whether an appeal lay to that Court but did not decide the question presumably because the Court dismissed the appeal on the ground of limitation. I may point out that in the unreported decision in the case of Nandalal v. Dinendranath, referred to above, Chakravartti J. was of the opinion that an appeal lay in such cases. It' is not necessary for me to express an opinion on this question because even if a second appeal was competent, the facts of the case are such as would have justified us in converting this petition in revision into a Memorandum of Appeal and in giving relief to the petitioner on that footing.

22. The result, therefore, is that the revision petition succeeds, the orders made by the Courts below are set aside and this case is remitted to the trial Court for giving relief to the debtors in terms of Section 37A (8) of the Act.

23. The Rule is accordingly made absolute. The petitioners will have their costs in this Court and in the Courts below.

K.C. Das Gupta, J.

24. I agree.


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