RANCHHOD DAHYA Vs. MUSAJIBHAI

JUDGEMENT

(1.) THIS is an application in revision by the petitioners, who were the defendants in the lower Court, against an order made by the Second Class Subordinate Judge of Bulsar in a suit filed against the petitioners by the opponent. The suit was for possession of certain property which the opponent alleged had been sold to . him by the petitioners and one Bai Mani, and for rent due under a registered rent-note passed by the petitioners to the opponent on February 19/1931. The suit was filed on September 26, 1941. On January 1, 1942, the Bombay Agricultural Debtors Relief Act was made applicable to the Bulsar Taluka of the Surat District and a Debt Adjustment Board was established under Section 4 of the Act. On June 29, 1942, the petitioners applied to the Debt Adjustment Board under the Act. On July 3, 1942, they applied to the Court under Section 73 of the Act that the hearing of the suit should bet stayed till the application to the Debt Adjustment Board had been decided, and on the same day the learned Judge made an order staying the suit. Thereafter on August 6, 1942, it was decided by this Court in Dadiba Arsiwalla v. Thakuji Ramji (1942) 44 Bom. L. R. 865 that the Bombay Agricultural Debtors Relief Act does not provide that on an application being made under Section 17 Section 73 comes into operation, and that in respect of pending suits the jurisdiction remains in the Court under Section 37 to determine whether the applicant is a debtor within the meaning of the Act and whether his debts are below Rs. 15,000. As a result of this decision the petitioners applied to the trial Colurt on March 23, 1943, to raise an issue regarding their status as debtors under the Bombay Agricultural Debtors Relief Act. Before that they had taken an adjournment for paying court-fees for redemption. The learned Judge granted the application and raised an issue as regards the status of the defendants. THIS was on April 27, 1943. Thereafter another decision of this Court under the Act was reported in In re Reference under Order XLVI, C. P. C. , (1942) 45 Bom. L. R. 445 in which it was held that in a suit relating to a transaction which is said by one side to be a mortgage and by the other side to be a sale, that question must be determined by the Court before transferring the suit to the Debt Adjustment Board under Section 37 of the Bombay Agricultural Debtors Relief Act, 1939.

(2.) IN the present suit it was the contention of the defendants that the real transaction between the parties was not one of sale but of mortgage. The opponent thereupon applied toi the Court for raising an issue regarding the nature of the transaction in suit and for deciding it before the issue about the defendants' status as debtors under the Agricultural Debtors Relief Act. The application was opposed by the defendants, but the learned Judge allowed it and ordered that the question whether the transaction was a sale or a mortgage should be decided first, and he directed the defendants to pay court-fees for redemption within fifteen days. Against this order the defendants have come in revision.

(3.) THE learned trial Judge therefore was not bound to stay the . suit under Section 73 merely because an application had been made by the defendants to the Debt Adjustment Board. THE suit having been filed prior to the establishment of the Board it was for the Court and not for the Board . to decide whether the'defendants were debtors under the Act and whether their debts did not exceed Rs. 15,000, and the defendants themselves evidently accepted this position and applied to the Court to raise an issue regarding their status. THE defendants have not come in revision against that order. THE! subsequent order of the Court, directing that the question whether the transaction was a sale or a mortgage should be decided first before the question of the defendants status was considered, has been made in accordance with the decision of this Court in In re Reference under Order XLVI, C. P. C. It is qbviously necessary that the Court should decide that question first. If the Court comes to the conclusion that the transaction is a sale and not a mortgage the question of the defendants' status would not have to be considered at all.