HIRAMAN RATAN Vs. PURSHOTTAM DEORAO

JUDGEMENT

(1.) THE snort point which arises in this civil revision application is Whether the petitioners are entitled to have their debts adjusted in respect of the opponent. An application was made by the petitioners' father on 15-10-1945, for the adjustment of his debts due from him to three creditors. Amongst them opponent I was the first creditor. This application was made to the Board, and at the time when it was made, it would have been governed by the provisions of Bombay Act 28 of 1939. However, the application was not disposed of until 12-4-1950. Meanwhile, the present Act 28 of 1947 had come into operation on 27-5-1947. Before the learned trial Judge, two contentions were raised by the creditor against the petitioners' claim for adjustment it was urged that the application was incompetent under Section 45, Sub-section (2), of the earlier Act of 1939. It was also contended that the application was barred under the provisions of Section 25, Sub-section (1), of the new Act of 1947. The learned trial Judge upheld the latter plea. In his opinion, the transaction now impeached had been finally adjudged to be a transaction other than a mortgage and so the application was barred under Section 25 (1) of the new Act. When the matter went in appeal, the lower appellate Court disagreed with this view. It held that in the earlier litigation no adjudication had really been made as to the nature of the transaction and so the provisions of Section 25 (1) of the new Act could not be invoked. It, however, upheld the other plea and came to the conclusion that since the transaction was prior to 1927, the application Itself was incompetent under Section 45, Sub-section (2), of the earlier Act of 1939. I should have stated that the transaction between the petitioners and the opponent was an ostensible sale and it had taken place on 13-7-1899. Since the petitioners' claim for adjustment of the debts has been rejected by the learned District Judge, they have come to this Court in the present revisional application.

(2.) THE principal point which arises on this application had in the meanwhile been decided by a Division Bench of this Court in -- 'vish-wanath Madhadev v. Krishnaji', AIR 1949 Bom 390 (A); it was held by the learned Chief Justice and myself that the effect of the provisions of Section 56 of the new Act was to make all the provisions of the new Act apppllcable to proceedings which nad been filed under the old Act and which were pending at the time when the new Act came into force. It is true that in this case we were not dealing with proviso (a) directly, but our decision was put on grounds which apply to all the provisos alike. In the ordinary course, the petitioners would have succeeded before the learned Chief Justice merely by referring to this decision of the Division Bench. But on behalf of the opponent the attention of the learned Chief Justice was invited to a contrary view which he had himself- expressed sitting as a single Judge in --'bapu Babu Naik v. Daji Keru Mandare', Civil Revn. Appln. No. 459 of 1952 (Bom) (B ). That is why the learned Chief Justice has referred this matter to a Division Bench and it has now become necessary for us to examine the question afresh.

(3.) SECTION 56, Sub-section (2) of the new Act, repealed the earlier Act of 1939 and it provided that all the Boards established under Section 4 of the repealed Act shall be dissolved. This Sub-section was followed by an important proviso which dealt with matters which were governed by the old Act until the commencement of the new one. it is proviso (a) with which we are directly concerned in the present revisionsl application. When the Act was passed, this proviso read thus: "provided that all proceedings pending before any such Board shall be continued before the Court if an application under Section 4 of this Act had been made to the Court. "