KESHAVLAL MANORDAS PATEL Vs. ATMARAM DAJIBHAI

JUDGEMENT

(1.) The short question that arises in these Revision Appli- cations is as to what is the period of limitation for an application to set aside an ex parte award under sec. 36 of the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred to as the Act). The petitioners in these Revision Applications filed a suit being Civil Suit No. 377 of 1946 in the Court of the Civil Judge Junior Division Ahmedabad for a declara- tion that a transaction relating to a field bearing Survey No. 121 situate in Vastrapur Village City Taluka Ahmedabad District. though ostensibly a sale was really a mortgage and for redemption of such mortgage. The transaction was effected by the ancestors of the petitioners and original opponent No. 6 in favour of Naranbhai Hirachand sometime in 1901 and the field forming the subject matter of the transaction was thereafter sold by Naranbhai Hirachand to the ancestor of Opponents Nos. 1 to 4 some- time in 1914. It appears that thereafter the respective parties to these transactions died and at the date when the suit was filed Opponents Nos. 1 to 4 were the only heirs of the ancestor who purchased the field from Naranbhai Hirachand and Opponent No. 5 was the only heir of Naranbhai Hirachand and if the transaction was a transaction of mortgage the peti- tioners and the original Opponent No. 6 would be the mortgagors. The suit was therefore filed by the petitioners against opponents Nos. 1 to 4 and 5 and since the original opponent No. 6 did not join as a co-plaintiff he was impleaded as a party defendant to the suit. Subsequent to the filing of the suit the Act carne into force in the Ahmedabad District and the petitioners thereupon filed an application for adjustment of their debts under sec. 4 of the Act in the Court of the Civil Judge Junior Division Ahmedabad- bad which was the Debt Adjustment Court within the meaning of sec. 2(3) of the Act. This application was numbered 1257/47 and on the filing of the application the suit which was pending in the Civil Court was trans- ferred to the Debt Adjustment Court under sec. 19 of the Act and was numbered as Application No. 19 of 1949. These two applications were thereafter consolidated and fixed for hearing on the same day for the decision of the preliminary issues referred to in sec. 17 of the Act. On the date fixed for the hearing of the applications both the petitioners were absent and the learned Judge of the Debt Adjustment Court accordingly dismissed the applications for want of appearance of the petitioners. The petitioners thereupon preferred two applications one bearing Miscellaneous Application No. 5 of 1952 for setting aside the order of dismissal of appli- cation No. 1257 of 1947 and the other bearing Miscellaneous Application No. 6 of 1952 for setting aside the order of dismissal of Application No. 19 of 1949. The ground on which these miscellaneous applications were made was that the petitioners had sufficient cause for not remaining present on the date fixed for hearing of the aforesaid main applications and that the orders of dismissal of the main applications passed by the learned Judge should therefore be set aside. The learned Judge allowed Miscel- laneous Application No. 5 of 1952 but dismissed Miscellaneous Application No. 6 of 1952. On review however the order made in Miscellaneous Application No. 5 of 1952 was set aside and that Miscellaneous Applica- tion was also dismissed. The result was that the orders dismissing both the main applications remained intact. The petitioners thereupon preferred Revision Applications to the High Court and the High Court set aside the orders of dismissal in regard to both the main applications and remanded the main applications to the Debt Adjustment Court for hearing on merits.

(2.) Now it appears that after the main applications were remanded attempts were made to serve Opponents Nos. 1 to 4 but according to the petitioners those attempts were unsuccessful and ultimately notice of the hearing of the main applications was given by substituted service. Oppo- nents Nos. 1 to 4 however did not remain present at the hearing of the main applications and the learned Judge of the Debt Adjustment Court therefore proceeded ex parte against Opponents Nos. 1 to 4. The learned Judge held in favour of the petitioners on the preliminary issues referred to in sec. 17 of the Act and proceeded to make a final award dated 6th March 1959 disposing of both the main applications. By the award the learned Judge held that the transaction though ostensibly a sale was really a mortgage and he determined the amount due from the petitioners to opponents Nos. 1 to 4 under the mortgage by scaling it down in accord- ance with the provisions of the Act and directed opponents Nos. 1 to 4 to hand over possession of the field to the petitioners. According to oppo- nents Nos. 1 to 4 they did not know about the date fixed for the hearing of the main applications after remand and they were therefore unable to remain present in order to defend the main applications. They alleged that it was only on 20th December 1959 that they came to know of the ex parte award made against them on the main applications. They there- fore preferred Miscellaneous Applications Nos. 16 and 17 of 1960 in the Debt Adjustment Court on 8th January 1960 for setting aside the ex parte award and restoring the main applications on file for fresh hearing Two Miscellaneous Applications were filed since the ex parte award was made on both the main applications. At the hearing of the Miscellaneous Applications before the learned Judge it was contended on behalf of the petitioner that the Miscellaneous Applications were barred by limitation since they were filed beyond the period of thirty days from the date of the ex parte award provided in Article 164 of the Limitation Act. This contention was accepted by the learned Judge who held that the Article of the Limitation Act which governed the Miscellaneous Applications was Article 164 and since Opponents Nos. 1 to 4 had filed the Miscellaneous Applications on 8th January 1960 which was more than thirty days after the date of the ex parte award namely 6 March 1959 the Miscellaneous Applications were barred by limitation. In this view of the matter the learned Judge did not go into the question whether Opponents Nos. 1 to 4 had sufficient reasons for not remaining present at the date of the hearing of the main applica- tions. The order passed by the learned Judge was a common order on both the Miscellaneous Applications since the point involved in both the Miscellaneous Applications was the same. Opponents Nos. 1 to 4 being aggrieved by the order of the learned Judge preferred appeals to the District Court Ahmedabad (Rural) at Narol. The learned Judge who heard the appeals took the view that the Miscellaneous Applications being applica- tions under sec. 35 of the Act were governed by Article 181 and not by Article 164 of the Limitation Act and that the miscellaneous applications having been filed within a period of three years from the date when the right to file the applications arose to opponents Nos. 1 to 4 were there- fore within the period of limitation. The learned District Judge in taking this view followed a decision of this Court given by Raju J. in Kasna Rupla v. Makan Khusal (1963) 4 G. L. R. 167. The learned Judge accord- ingly allowed the appeals set aside the order passed by the learned trial Judge and remanded the Miscellaneous Applications to the learned trial Judge for disposal on merits. The petitioners thereupon preferred the present Revision Applications in this Court. At the time of admission of these Revision Applications it appears the learned Judge who admitted these Revision Applications felt that there was a conflict between two decisions of single Judges one being the decision of Raju J. in Kasna Ruplas case and the other being the decision of Gajendragadkar J. as he then was in Mangilal v. Shivram A. I. R. 1956 Bombay 725 and he there- fore made an order referring both the Revision Applications to a Division Bench for final hearing. That is how these Revision Applications are now before us.

(3.) The main question which arises for consideration in these Revision Applications is as to whether the Miscellaneous Applications filed by Oppo- nents Nos. 1 to 4 for setting aside the ex parte award made against them by the learned Judge of the Debt Adjustment Court were barred by limita- tion. But a subsidiary argument was also advanced on behalf of the petitioners and that argument was that an application to set aside an ex parte award could be maintained only under sec. 36 of the Act and not under Order 9 Rule 13 of the Code of Civil Procedure and since the Miscellaneous Applications preferred by Opponents Nos. 1 to 4 were not under sec. 36 of the Act but were under Order 9 Rule 13 of the Code they were not maintainable. Reliance was placed in this connection on the decision of Gajendragadkar J. as he then was in Mangilals case (supra). In that case an ex parte order was made by the Debt Adjustment Court under sec. 24 holding that the transaction in question though osten- sibly a sale was a mortgage and the creditor thereupon preferred an applica tion for setting aside the ex parte order T4e application was in terms made under Order 9 Rule 13 of the Code of Civil Procedure and the learned advocate appearing on behalf of the creditor insisted that the application be dealt with as one made under Order 9 Rule 13. The Debt Adjustment Court as also the District Court in appeal took the view that the application based as it was on Order 9 Rule 13 was not maintainable and the matter was therefore carried further in revision to the High Court. Gajendragadkar J. as he then was held that an order under sec. 24 was not a decree and that an application to set aside an ex parte order under sec. 24 could not therefore be maintained under Order 9 Rule 13. Such an application observed the learned Judge could be made only under the provisions of sec. 36 of the Act and since the application in the case before him was expressly and in terms an application under Order 9 Rule 13 he held that the application was incompetent. On this view being taken by the learned Judge an application was made to him on behalf of the creditor that the application be treated as an application under sec. 36 of the Act but the learned Judge did not accede to this request since the learned advocate for the creditor had expressly stated by a Purshis that he wanted the application to be dealt with as one made under Order 9 Rule 13 and had requested the Court to try the issue of the competence of the application on that basis. We entirely agree with the view taken by the learned Judge in this case. This decision is plainly correct and in view of this decision it is clear that the Miscel- laneous Applications of Opponents Nos. 1 to 4 for setting aside the ex parte award could be sustained only if they were made under sec. 36 of the Act and not under Order 9 Rule 13 of the Code. Now the argument of the petitioners was that the Miscellaneous Applications were not under sec. 36 of the Act but were under Order 9 Rule 13 of the Code and they had been argued as applications under Order 9 Rule 13 of the Code before the learned trial Judge and it was only at the hearing of the appeals before the learned District Judge that opponent Nos. 1 to 4 had changed their stand and tried to justify the applications under sec. 36 of the Act. The Miscellaneous Applications+ions being really and truly under Order 9 Rule 13 of the Code it was submitted they were not maintain- able and should therefore have been dismissed. This contention is in our opinion entirely devoid of merit. There is nothing in the Miscellaneous applications to show that they were made under Order 9 Rule 13 of the Code. As a matter of fact the Miscellaneous applications did not show on the face of them as to what was the provision of law under which they were made but it is clear from the contents that they were made for setting aside the ex parte award passed against opponents Nos. 1 to 4. Now if an application to set aside an ex parte award could be made only under sec. 36 of the Act and not under Order 9 Rule 13 of the Code the miscellaneous applications made by opponents Nos. 1 to 4 must be held to have been made under sec. 36 of the Act which is the proper provision of law under which such applications could be made Even when we turn to the judgment of the learned trial Judge we do not find it stated anywhere in the judgment that the miscellaneous applications were made by opponents Nos. 1 to 4 under Order 9 Rule 13 of the Code The parties undoubtedly proceeded on the basis that Article 164 applied the govern the period of limitation in respect of the miscellaneous appli- cations but that might have been due to an assumption on the part of opponents Nos. 1 to 4 that even in regard to an application for setting aside an ex parte award under sec. 36 of the Act the period of limitation was governed by Article 164. The learned District Judge in appeal clearly proceeded on the basis that the miscellaneous applications were made under sec. 36 of the Act and there is no doubt in our minds that the miscellaneous applications were preferred under sec. 36 of the Act and not under Order 9 Rule 13 of the Code.