CHIMANLAL CHHOTALAL Vs. VAJESANG CHANDABHAI

JUDGEMENT

(1.) THESE are references made by the District Judge of Ahmedabad and they raise an important question of construction of Section 57, Bombay Agricultural Debtors' Relief Act, 1947. The points which we have to consider in these references are whether the benefit of extended time under Sub-section (1) of Section 57 for making an application under Section 4 is available in cases where, upon the date on which the territory of a merged State merged with the State of Bombay, (a) the debtor and creditor both resided outside the merged territory and the debtor's property was also situated outside the merged territory; (b) the creditor resided in the merged territory, but the debtor resided outside the merged territory and his property was also situated outside the merged territory; (c) irrespective of where the debtor or the creditor resided (i) the debtor had property in the merged territory, but the creditor could not enforce his remedy against that property for the recovery of the debts due to him, (ii) the debtor had property in the merged territory and the creditor could enforce his remedy against that property for the recovery of the debts due to him, but where no application under Section 4 was made within six months from the date of the coming into operation of the Bombay Agricultural Debtors' Relief (Amendment) Act 37 of 1950.

(2.) IN order to understand how these points arise, it is necessary to state the facts. Reference No. 3 of 1955 has arisen out of an order passed by the Civil Judge, J. D. Dehgam, in applications Nos. 4312 of 1950 and 3125 of 1950 under the Bombay Agricultural Debtors' Relief Act. Reference No. 10 of 1955 has arisen out of an order of the same learned Judge in application No. 1450 of 1950. On 31-1-3950 an application No. 4312 under the B. A. D. R. Act, 1947, was filed in the Court of the Civil Judge, J. D. , at Dehgam, by a debtor of the name of Vajesang and it was filed against eight creditors, some of whom are residents of Palundra and the rest of Bahiyal. It would appear that Vajesang has properties in Palundra and elsewhere. On the same date, 31-1-1950, one Chimanlal, one of the creditors of Vajesang, also filed an application No. 3125 in the Dehgam Court against Vajesang for the adjustment of the debts which were due to him from Vajesang. This Chimanlal is also a resident of Palundra and ordinarily lives there. It may be noted in passing that another application, viz. application No. 5526 was also made by another debtor. It was made on 13-6-1949. It was an application against a creditor of Palundra and it was filed in a Court in Dastroi Taluka of the Ahmedabad District. This application was transferred to the Dehgam Court and was consolidated with the abovementioned two applications, viz. applications Nos. 4312 and 3125. So far as application No. 5526 is concerned, it was rejected by the Dehgam Court on the ground that it did not contain necessary particulars, and so far as the other two applications, viz. Nos. 4312 and 3125 of 1950 are concerned, they were dismissed by the learned Judge as being not maintainable as "they were not made in the Court within whose jurisdiction the debtor ordinarily resided and within the prescribed time. " the learned Judge held that Section 57 of the Act did not apply to these applications as they were not made within six months from 8-11-1950, the date on which the Bombay Act 37 of 1950 (Bombay Agricultural Debtors' Relief (Amendment) Act, 1950) came into operation, but were made much earlier. In the view of the learned Judge, Section 57 did not apply to a proceeding already pending on 8-11-1950. The learned Judge observed: "the principle of law is that the parties are governed by the law in force at the date when the suit is instituted and any subsequent amendment or alteration of the law cannot affect pending proceeding. Of course the legislature can expressly provide that pending proceedings will be affected by an amendment of the law. While enacting Section 57, Legislature has not provided that pending applications falling under the provisions of Section 57 should be treated to have been made under Section 57. On the contrary, Legislature has prescribed the time-limit of six months for making applications under Section 57. " it was for these reasons that the learned Civil Judge held applications Nos. 4312 and 3125 of 1950 to be incompetent. On appeal to the District Court, the learned District Judge framed two points of reference and those points are: (1) Whether the applications made on or before 31-1-1950 are to be deemed as applications filed under the proviso to Section 57, Bombay Agricultural Debtors' Relief Act; (2) Whether the amended Section 57 should be given retrospective effect as regards applications made on or before 31-1-1950, irrespective of the period prescribed. The learned District Judge answered both these points in the affirmative and made a reference to this Court for final pronouncement as to the legal position on these points as the points are of general importance.

(3.) PALUNDRA and Vedodra are villages in Dabhoda Bavishi. Until 9-11-1943, Dabhoda Bavishi was a part of the Sabarkantha agency. From 9-11-1943 to 15-10-1948, it formed a part of the Dehgam Taluka of the former Baroda State. On 15-10-1948, Dabhoda Bavishi merged with the State of Bombay and became a part of the Dastroi Taluka of the Ahmedabad District. These territorial changes were brought about by the Bombay (Enlargement of Area and Alteration of Boundaries) (Amendment) Order, 1948, and Notification No. 2751/46/g dated 15-11-1948 of the Government of Bombay. The Bombay (Enlargement of Area and Alteration of Boundaries) (Amendment) Order, 1948, was passed by the Governor-General of India. It was to take effect from 15-10-1948 though it was published in the Bombay Government Gazette Extraordinary Part IV-C on 27-10-1948. It may be noted that the Bombay (Enlargement of Area and Alteration of Boundaries) Order 1948, which was passed by the Governor-General of India and which came into force on 10-6-1948, provided that the areas specified in the schedule to the said Order were thereby included in the territories of the Dominion of India and further provided that the added areas would form part of the Province of Bombay and that the boundaries of the Province of Bombay would be so altered as to comprise within them the added areas. In the schedule to this Order, we find certain entries under the Katosan Thana, viz. entries Nos. 223 to 232. By virtue of the Bombay (Enlargement of Area and Alteration of Boundaries) (Amendment) Order 1948, the above-mentioned Order i. e. The Bombay (Enlargement of Area and Alteration of Boundaries) Order, 1948 was amended and the amendment was that certain entries were to be added below entry No. 232 under the Katosan Thana. The added entries were 233 to 252. Entry No. 239 relates to Palundra and entry No. 241 relates to Vedodra. Thus the combined effect of the Bombay (Enlargement of Area and Alteration of Boundaries) Order, 1948, and its amendment was that the Bavishi Thana, comprising, amongst other villages, the villages of Palundra and Vedodra, became a part of the Province of Bombay. The Notification No. 2751/46/g which was issued by the Government of Bombay in the Political and Services Department on 15-11-1948 provided that the areas comprising the Matadari Estates of Bavishi Thana, viz. Harsoli, Amrajinamuada, Lavad Vedodra, Angutla, Vatwa, Harakjina-muada, Dabhoda, Salki, Bardoli and Palundra would merge with and form part of the Dastroi Taluka of the Ahmedabad District and would be administered accordingly. Effect was given to this order from 15-10-1948. Thus, the combined effect of the Bombay (Enlargement of Area and Alteration of Boundaries) (Amendment) Order, 1948, and the abovementioned Notification of the Government of Bombay was that the villages of Palundra and Vedodra merged with the State of Bombay and became part of the Dastroi Taluka of the Ahmedabad District. It may be noted that when these villages merged with the State of Bombay and became a part of the Dastroi Taluka of the Ahmedabad District on 15-10-1948, the Bombay Agricultural Debtors' Relief Act. 1947, was already in force in the Dastroi Taluka and, under the provisions of that Act, applications under Section 4 for the adjustment of debts were to be made before 15-6-1949. The abovementioned villages Palundra and Vedodra continued to be a part of the Dastroi Taluka of the Ahmedabad District till 31-7-1948. From 1-8-1949, they became a part of the Dehgam Taluka of the former Baroda State. It may be noted that the Baroda State had already became a part of the Dominion of India on 1-5-1949 and its complete integration in the State of Bombay took place on 1-8-1949. It was on that date, viz. 1-8-1949, that the villages of Palundra and Vedodra became a part of the Dehgam Taluka and this change was brought about by the Notification of the Government of Bombay No. 2755/46/f dated 29-7-1949. So far as the Dehgam Taluka is concerned, it may be noted that the Bombay Agricultural Debtors' Relief Act, 1947, was made applicable to that area with effect from 1-8-1949 and applications for the adjustment of debts were to be made before 31-1-1950. I have already pointed out above that applications Nos. 4312 and 3125 of 1950 were made on 31-1-1950, and the other two applications, viz. No. 1450 of 1950 and another, which were made by the creditors of Vedodra against a debtor of that village, were made on 28-1-1950 and 31-1-1950 respectively.