GANGABAI Vs. RATAN KUMAR

JUDGEMENT

(1.) Madangopal Zumbarlal Chaudhari Agarwal of Achalpur city, taluka Achalpur, district Amravati obtained a preliminary decree against defendants Bhagwant and his two sons Prabhakar and Madhukar for foreclosure on the basis of a mortgage for Rupees 5,510.82 Possession and defendant having failed to pay the amount, applied on 19-2-1968 by Exempted. 1, application for making the decree final. Defendants filed an application under Section 24 of the Bombay Money Lenders Act claiming in statements. It was registered as M. J. C. No. 34 of 1968 (at places this is referred as M. J. C. No. 134/1968). This application was filed on 13-10-1968 (at some places this date is indicated as 4-11-1968). On 15-10-1968 defendants filed an application under Section 3 of the Madhya Pradesh Temporary Postponement of Execution of Decrees Act, 1956 (for short, referred to hereinafter as M. P. Act), praying of postponement of final decree proceedings in terms of the said Act, Say of plaintiffs was filed on 25-10-1969. The M. P. Act was extended from time to time and the last such extension was by Act No. 2 of 1967. The M. P. Act came not force on 28th March, 1956 and the total extension was for a period of 13 years and, therefore, it expired on 27th March 1969. Maharashtra (Vidarbha Region) agricultural Debtors Relief Ordinance 1969 came into force on 7-3-1969 and it was replaced by Maharashtra Act of the same nomenclature being Act No. XXII of 1969 with a provision "that anything done or any action taken under the Ordinance or repealed, shall be deemed to have been done or taken under the Act." Defendants filed another application under the above referred Ordinance on 147-1969 praying that procedure for adjustment of debts, as provided in the Ordinance and thereafter by Act, had to be followed by the plaintiffs and, therefore, an application for making preliminary decree final was liable to be dismissed. Say of plaintiffs to this was filed on 25-10-1969; on 27-1-1970 arguments were heard and an order was passed in the following terms:- "Heard Counsel. The decree in question comes within the ambit of Section 2(7) of the Maharashtra (Vidarbha Region Agricultural. Debtors Reliefs Act (No.XXII of 1969). which came into force on 7-31969. Hence the execution of the decree shall be in accordance with the provisions of that Act (ibid) viz., adjustment of debt and passing of award. the present application is, therefore, not tenable. I dismiss same and direct the parties to bear the costs as incurred". Petitioner submits that this was a composite order disposing of Exempted. 7 as well as Exempted. 8 and was passed by the Court validly and with jurisdiction. On behalf of the respondents it is urged that the said order is not a composite order by an order disposing of application Exempted. 8 only since Exempted. 7 which was under M. P. Act could not have been decided after its repeal by Bombay Ordinance.

(2.) For a period of about 1 year and 8 months no steps were taken by plaintiff and it was for the first time on 6-10-1971 that plaintiff filed an application praying that order at Exempted. 9 be treated as a nullity and the application seeking final decree be decided or his application dt 6-10-1971 be treated as a fresh application for final decree, since it was within limitation and Order Exempted. 9 was invalid. After hearing the parties the learned trial judge allowed plaintiff's application by order dated 13-2-1975 which is under challenge in this revision petition.

(3.) Defendants had challenged the above referred impugned order by filing an appeal before the District Judge, Amravati who held that appeal was not maintainable. The appellate order was challenged in C. R. A. No. 270 of 1978 which was disposed of by maintenance by order dated 8-7-1982 without going into merits and confirming the view adopted by the learned District Judge. the present C. R. A. No. 270 of 1978 but since the latter revision was being disposed of without going into merits of the controversy, the hearing of the present revision petition was postponed.