CHODHARI VELA GOKUL Vs. GOTHI DANA BAWA

JUDGEMENT

(1.) The petitioners are the original applicants who applied for excecution of the award passed under the Bombay Agricultural Debtors Relief Act, 1947. The award was passed by B.A.D.R. Court against them on 20-9-55 and as per the award they were required to pay Rs. 202-05 annas in four instalments the last instalment was to be paid on 1-1-1959. On payment of all the instalments the applicants were to get back possession of Khadu (threshing floor) from the repondents, who were the applicants' creditors. The applicants did not pay the instalments as provided in the award but paid the whole amount alongwith their application for execution filed in the Court of Civil Judge (J.D.), Raper on 16-3-82 and wanted the Court to restore possession of Khadu to the applicants. The respondents raised an objection regarding the maintainability of the application on the ground that it was barred by limitation. No other objection was raised with respect to the maintainability of the said application. The learned Civil Judge agreed with the contention raised on behalf of the respondents that the award become enforceable on 1-1-59 as that was the last date on which the last instalment became payable. As the lest instalment was not paid, the said award became enforceable with effect from that date. The learned Judge also took the view that simply because the award was not registered, it did not become unenforceable and, therefore, the period of limitation will start running from 1-1-59 and not from 20-1-81 the day on whibh it came to be registered in accordance with the provisions of the Act. The learned Civil Judge, therefore, dismissed the application on the ground that it is barred by limitation. Aggrieved by the said order, the petitioners have filed this revision application under Section 115 of the Civil Procedure Code.

(2.) What is urged by the learned Advocate for the petitioners is that while deciding the question of limitation and executibility of the award, the learned Judge has not applied the correct provision of law as applicable to state of Kutch on the date on which the application for execution was given. He submitted that in its application to the State of Kutch, the relevant portion of Section 38 of the said Act reads as under :-

(3.) He submitted that the words, "so registered" no doubt were deleted by Act No. 37 of 1950, but that amendment did not apply to the State of Kutch which was then a part of its territory. Though the learned Civil Judge held that the award became enforceable with effect from 1-1-1959 the said finding has been given de hors the provisions of Section 38 of the Act. But for the fact that it is a question of fact as to whether the said amendment made in the Bombay Act was also applied to State of Kutch or not, I would have permitted Mr. Mankad to canvass this point before me and I would have decided whether the amendment in sub-section (3) of Section 38 of the Act applied to the State of Kutch or not. Whether the amendment was applied to the State of Kutch or not will have to be proved by leading evidence or relevant notification because clause 5 of the Application of Laws Order 1949 permittrd an officer of the Central Government or an officer of Kutch Government to apply the amendments made in respect of other areas to the State of Kutch. Whether that was done or not would be a question of fact. It would, therefore, be better if the matter is remanded to the trial Court and both the parties are permitted to lead evidence on this point.