PANDURANG ANNAJI KOKATNUR Vs. CHANNABASAPPA

JUDGEMENT

(1.) This is an appeal by Judgment-debtor 1, against the order dated 8th October, 1956. made by the Extra Asstt Judge, Bsl-gaum, whereby he affirmed the order passed by the executing Court and dismissed the appeal of the appellant.

(2.) Respondent 1 is the decree-holder who obtained a money decree in O. S. 12/1939 on 28th November, 1940 for a sum of Rs. 1,100. The amount was made payable by instalments of Rs. 200 each and the first instalment was made payable on the 15th February, 1941. The decree also contained a default clause. The decree-holder gave a darkhast on 13th June, 1944 but this darkhast came to be dismissed on the 25th July, 1944. In the meanwhile, the Bombay Agri-cultural Debtors Relief Act came to be applied to Athni Taluka where both the judgment-debtor and the decree-holder reside. A second darkhast was filed, being darkhast No. 96/54. During the pendency of this darkhast, an application was made by the decree-holder to the hoard on 29th October, 1945 under the provisions of the Bombay Agricultural Debtors Relief Act for the ad-justment of his debts. This application was not contested by the judgment-debtor. There was no finding that the judgment-debtor was an agriculturist. Because it is only the debts due by the agriculturists that are liable to be adjusted in the Board established under the Act proceedings therefore came to be re-transferred to the executing Court for disposal according to law. But this darkhast came to be dismissed for non-prosecution. The decree-holder then gave a third darkhast being darkhast No. 69/49. But this also came to be dismissed for non-prosecution. Thereafter the present darkhast, out of which this appeal arises, came to be filed on the 30th September, 1952, as darkhast no. 11/52. In this execution proceeding, the properties belonging to the judgment-debtor came to be attached. But the decree-holder made an application on the 12th July, 1955 whereby he sought to amend the darkhast No. 11/52 by adding other properties. To this application, the judgment-debtor objected. According to him, this must be deemed to be a fresh application and if so, it is barred under the provisions of Section 48 or the Civil Procedure Code. But the Courts below have held that this darkhast is not barred under the provisions of Section 48 of ihe Civil Procedure Code. For that purpose they relied on the pro-visions contained in Section 52 of the Bombay Agricultural Debtors Relief Act which state that in computing the period of limitation for the institution of any suit or proceeding in respect of any debt due from any person who is held not to be a debtor by the court or the Court of appeal, the period during which the proceedings in respect of such debt were prosecuted before the court or the Court of appeal, shall be excluded.

(3.) Mr. Bhat, the learned counsel for the appellant, contends that if the provisions of Section 52 of the Bombay Agricultural Debtors Relief Act are held to be applicable to the proceeding, then the order passed by the Courts below can be justified, But he urges that the provisions of Section 52 of the Bombay Agricultural Debtors Relief Act are not applicable to the proceeding, and in developing this argument, he has made three submissions to the Court, The first is that Section 52 of the Bombay Agricultural Debtors Relief Act speaks about the computation of the period of limitation for the institution of any suit or proceeding, and he contends that the provision contained in Section 48 of the Civil Procedure Code is not a period of limitation. Therefore the provisions of Section 52 cannot be invoked or pressed into service for the purpose of holding that the darkhast is not barred by Section 48 C.P.C. The second argument is that the darkhast proceedings are not the proceedings included in the word "Proceedings" used in Section 52 of the Bombay Agricultural Debtors Relief Act. The third submission is that the provision contained in Section 52 of the Bombay Agricultural Debtors Relief Act must he held to be void as the same is repugnant to the provision contained in Section 48 C.P.C. which is a provision of law made by the Central Act. This argument is obviously based on the provisions contained in Article 254 of the Constitution of India. Therefore, according to Mr. Bhat, any one of these contentions is sufficient to hold that the darkhast, out of which this appeal arises, is barred under the provisions of Section 48 of the Civil Procedure Code.