SHAH NANALAL MANEKLAL Vs. PATEL CHHOTUBHAI DESAIBHAI

JUDGEMENT

(1.) The appellant filed Regular Civil Suit No. 400 of 1947 against the respondent and in that suit a consent decree was passed on 28/07/1948 whereby the respondent was ordered to pay certain amount to the appellant. The appellant thereafter filed a Darkhast No. 262 of 1948-49 for execution of the decree. In the meanwhile the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred to by me as the Act) was made applicable and the respondent therefore applied on 5/11/1949 for transfer of the Darkhast under sec. 19(1) of the Act on the ground that he was a debtor within the meaning of the Act and that the total amount of debts due from him did not exceed Rs. 15 0 The Darkhast was thereupon transferred to the B. A. D. R. Court under sec. 19(1) and was treated as an application made under sec. 4. The application thereafter came up for hearing before the B. A. D. R. Court on 18/07/1952 when the appellant remained absent. Since the appellant was absent the B. A. D. R. Court instead of proceeding ex parte to hear the application and to decide the preliminary issues dismissed the application for default of appearance of the appellant. The appellant filed an application before the B.A.D.R. Court for restoration of the application which was dismissed for default of appearance but this application was dismissed by the B.A.D.R. Court. The appellant carried the matter in appeal but the appeal was also dismissed on 19/01/1954 The result was that the Darkhast of the appellant which was transferred to the B. A. D. R. Court and treated as an application under section 4 remained dismissed for want of appearance of the appellant. During the pendency of the appeal against the order refusing to restore the application the appellant filed another Darkhast namely Darkhast No. 190 of 1953 on 19/10/1953 to execute the decree. In opposition to the Darkhast the respondent contended that the judgment-debt due and owing by the respondent to the appellant was extinguished under the provisions of section 15 (1) and that the appellant was therefore not entitled to execute the decree against the respondent. The respondent also contended that inasmuch as the previous Darkhast of the appellant which was transferred to the B. A. D. R. Court and treated as an application under section 4 was dismissed by the B. A. D. R. Court for default of appearance of the appellant it was not competent to the appellant to prefer another Darkhast and that such Darkhast was barred by the provisions of Order IX Rule 9 of the Code of Civil Procedure. Both these contention were negatived by the learned Civil Judge (Junior Division) who held that the appellant was entitled to proceed with the Darkhast and to execute the decree against the respondent. The respondent thereupon filed an appeal before the District Court of Kaira at Nadiad. The learned Assistant Judge who heard the appeal accepted the contentions urged on behalf of the respondent and held that inasmuch as the appellant had allowed his previous Darkhast to be dismissed by the B.A.D.R. Court for want of appearance the position was the same as if no application under section 4 had been made by the appellant within the time prescribed under the Act and that the provisions of section 15(1) therefore applied and had the effect of extinguishing the judgment debt due and owing from the respondent to the appellant. The learned Assistant Judge also held that the provisions of the Code of Civil Procedure applied to applications under section 4 and that inasmuch as the previous Darkhast of the appellant was dismissed by the B.A.D.R. Court for want of appearance the dismissal of that Darkhast amounted to an order passed under Order IX Rule 8 of the Code of Civil Procedure and that the appellant was therefore not entitled to file another Darkhast for execution of the decree in view of the provisions of Order IX Rule 9 of the Code of Civil Procedure. The learned Assistant Judge of course made it clear that the aforesaid consequences could ensue only if the respondent was a debtor within the meaning of the Act and the total amount of debts due from him did not exceed Rs. 15 0 The learned Assistant Judge therefore set aside the order of the learned trial Court and remanded the Darkhast to the trial Court for deciding the question as to whether the respondent was a debtor within the meaning of the Act and his total debts did not exceed Rs. 15 0 and directed that the trial Court should pass proper orders either for dismissing the Darkhast or for proceeding with it in the light of the observations made in his judgment. It is against this order of the learned Assistant Judge that the appellant has brought the present Second Appeal before this Court.

(2.) Mr. C. K. Shah learned Advocate on behalf of the appellant attacked the judgment of the learned Assistant Judge on both the grounds which were decided in favour of the respondent. Mr. C. K. Shah contended that when the appellants Darkhast was transferred to the B. A. D. R. Court under sec. 19(1) the B.A.D.R. Court was bound to proceed with the Darkhast as if it was an application under sec. 4 and even if the appellant did not appear at the hearing of the Darkhast before the B.A.D.R. Court the B.A.D.R. Court was not entitled to dismiss the Darkhast for want of appearance but was bound to proceed ex-parte to hear the Darkhast as an application under sec. 4 and to decide the preliminary issues namely :

(3.) The argument was that the Act did not contemplate any dismissal of an application under sec. 4 for want of appearance of the party making the application and that the dismissal of the appellants Darkhast was therefore contrary to the provisions of the Act. According to Mr. C. K. Shah the wrongful dismissal of the appellants Darkhast by the B.A.D.R. Court did not result in the extinguishment of the appellants judgment debt against the respondent and the learned Assistant Judge was wrong in coming to the conclusion that the effect of the dismissal of the appellants Darkhast was as if no application had been filed by the appellant under sec. 4 so as to attract the applicability of sec. 15(1). Mr. C. K. Shah also relied on sec. 36 and contended that under that section it was expressly provided that notwithstanding that the person for the adjustment of whose debts an application had been made under sec. 4 or any of his creditors did not appear on the date fixed for the hearing of the application or on any date to which it might be adjourned the Court was bound to proceed ex parte to hear the application decide the preliminary issues and if necessary make the award on the evidence available. This express provision in sec. 36 argued Mr. C. K. Shah excluded the applicability of Order IX of the Code of Civil Procedure and the learned Assistant Judge was therefore wrong in holding that the appellants new Darkhast was barred by reason of the provisions of Order IX Rule 9 of the Code of Civil Procedure. Mr. B. K. Amin learned advocate on behalf of the respondent on the other hand supported the judgment of the learned Assistant Judge and the contentions urged by Mr. B. K. Amin followed the same line of reasoning as the judgment of the learned Assistant Judge.