PATEL NARANBHAI MARGHABHAI Vs. DECEASED DHULABHAIGALBABHAJ

JUDGEMENT

(1.) Special leave granted.

(2.) This appeal by special leave arises against the order of the Gujarat High Court dated November 20, 1990 made in Special Civil Application No. 6852 of 1990. The appellants are the legal representatives of Naranbhai Marghabhai - the mortgagee. The respondents are the legal representatives of Dhulabhai Galbabhai - the mortgagor, agriculturist. The lands bearing survey No. 572/ 2 admeasuring 1 A.32 Gs. and survey No. 354 admeasuring IA.23 Gs. situated in Bhadra village in Kheda district were hypothecated by the mortgagor to the mortgagee. The mortgage is governed by the Bombay Agricultural Debtors Relief Act, 1947 for short "the Act". Under Section 31 of the Act the debt payable by an agriculturist shall be scaled down in the manner laid in the Act. The debt in excess thereof stands extinguished under Section 34. The amount of debt determined after scaling down is an award under Section 34 and shall be registered as prescribed under Section 38 if a charge of the debt has been created on the properties of the debtor. Under clause (iii) of sub-section (3) of Section 38 the award shall be executed as if the Court passed an order. Under Section 32(2)(v) the Court may "pass an order for the delivery of possession of any property, notwithstanding any law or contract to the contrary". "Award" has been defined under Section 2(1) to mean an award made under sub-section (4) of Section 8 or Section 9, 32 or 33 or as confirmed or modified by the Court in appeal. "Court" has been defined to mean 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 (Jr. Division) having such jurisdiction and includes any Court to which an application may be referred for disposal under Section 13A. Thus it is clear that notwithstanding any law or contract to the contrary the award for delivery of the possession of any property charged or hypothecated shall be executed as if it is the order of the Civil Court.

(3.) Section 46 provides "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." Sections 32 and 38 are part of this chapter of the Act. Section 51 A envisages that except as otherwise provided by the 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 the Act, or (ii) the validity of any procedure or the legality of any award, order or decision of the Board established under Section 4 of the repealed Act or of the Court, or (iii) the recovery of any debt made payable under such award. The Act, therefore, is a complete Code in itself as regards the determination of the debt; the liability fastened thereunder and the recovery of the debt due or the possession of the agricultural lands pursuant to the award. Only the mode of execution has been relegated to the procedure provided in the Civil Procedure Code. The Civil Court found that the award was registered at the behest of the mortgagee and the debt was payable in six annual instalments carrying interest at 6%. The debt due was Rs. 3,000/- when the mortgagor/ debtor committed default in the payment and execution was laid whereunder a compromise was effected pursuant to which the debt was completely discharged. Yet the mortgagee continued in possession till date. The respondents laid execution for recovery of the possession of the hypothica. Several objections were raised but we are concerned in respect of three, namely that the award is barred by limitation, (ii) the mortgagee perfected title by adverse possession, and (iii) the lands were sold by the Collector for the recovery of octroi duty in which the mortgagee purchased the property. The character of the mortgagee stands transferred into an ownership and thereby they are not liable to surrender possession. These contentions were negatived by the Civil Court. The Civil Court while directing delivery of the possession, ordered to pay mesne profit at the rate of Rs. 5,000/-per year from three years preceding the date of application till date of delivery of possession. The High Court declined to interfere on the finding that "it is eminently just and proper order'.