AKBARALLI ABEDALLI BOHARI Vs. GODHA LAHANU DHANGAR

JUDGEMENT

(1.) THIS revisional application raises a short question as to whether the appeal preferred by the petitioner before the lower appellate Court was competent. The lower appellate Court has held that the appeal was incompetent and Mr. Madbhavi for the petitioner disputes the correctness of this finding.

(2.) THE point arises in this way. On the 5th of February, 1939, a sale-deed was executed in favour of the petitioner for Rs. 2,000. The property conveyed was Survey No. 12. In 1944 the vendor brought a suit No. 1 of 1944 under the Dekkhan Act. Ho claimed a decree for accounts and redemption. This suit was compromised. Under the terms of compromise the vendor was under an obligation to pay specific amounts within the period specified by the compromise decree. On his failure to comply with this order, the vendee was held entitled to obtain possession of the land. The vendor failed to comply with the directions issued by the compromise decree and the vendee filed an execution application and claimed possession of the property conveyed. These proceedings were transferred to the Bombay Agricultural Debtors Relief Act Court because the vendor again raised the question that he was a debtor inasmuch as the transaction in question was not a sale but a mortgage. In these proceedings the learned trial Judge found on the 22nd of February, 1952, that the transaction was in reality a mortgage. This finding was preceded by a preliminary finding as to status in favour of the debtor. As a result of this finding, the adjustment Court held an enquiry into the paying capacity of the debtor and on the 8th of April, 1952, the adjustment Court was satisfied that the debtor was an insolvent. Accordingly an order was passed declaring the debtor insolvent. The adjustment Court also held that the properties of which the debtor was possessed were not enough to maintain him and so it was not possible to direct the sale of any portion of his properties under Section 47 (2 ). In the result, it was declared that the properties were free from all encumbrances. It was against this last order that the creditor preferred an appeal and he was met by the plea that the appeal was incompetent. On the merits the learned appellate Judge has found that, if he had to deal with the evidence, he would have come to the conclusion that the transaction was a sale and not a mortgage.

(3.) MR. Madbhavi contends that the view taken by the lower appellate Court on the question of the competence of the appeal is not justified by the provisions of Section 43 of the Bombay Agricultural Debtors' Relief Act. The lower appellate Court has based its conclusion on the ground that the creditor did not make an appeal against the finding that the transaction was a mortgage which had been recorded on the 8th of April, 1952. There is no doubt that against the order passed by the learned trial Judge determining the nature of the transaction under Section 24 an appeal was competent. But the lower appellate Court was in error in assuming that the failure to make an appeal against the said order created a bar against the petitioner disputing the correctness of the said finding in his final appeal against the award. I may point out that the lower appellate Court has dealt with this question on the assumption that the final order passed by the learned trial Judge was an award. He, however, held that an appeal against the award was incompetent because the award was preceded by an order which was appealable and no appeal had been preferred against that order. In substance, the view taken by the lower appellate Court proceeds on considerations which flow from the provisions of Section 97 of the Code of Civil Procedure. Section 97 of the Code provides that, if an appeal has not been preferred against a preliminary decree, the party aggrieved by the preliminary decree shall be precluded from disputing the correctness of the preliminary decree in any appeal that he may make against the final decree. The learned District Judge thought that, since the petitioner had not challenged tile correctness of the finding that the transaction was a mortgage by preferring an appeal against the said order, as he should have done under Section 43 of the Bombay Agricultural Debtors' Relief Act, lie was precluded from agitating that matter in his present appeal against the award. This view overlooks the fact that the Bombay Agricultural Debtors' Relief Act makes no provision corresponding to the provisions contained in Section 97 of the Code, and so far as this Court is concerned, it may be taken to be fairly well settled that the failure of a party to make an appeal against an order passed under Section 24 of the Bombay Agricultural Debtors' Relief Act, like his failure to appeal against an order passed under Section 17 does not preclude him from challenging the correctness of such finding in an appeal against the award. I must, therefore, hold that the only reason given by the learned District Judge in coming to the conclusion that the appeal preferred before him was incompetent is unsound.