BASAVANAPPA SHIVAPPA Vs. NEELAPPA ADIVEPPA

JUDGEMENT

(1.) IN Proceedings taken under Section 4, Bombay Agricultural Debtors Act, two persons who were shown in column 7 as co-sharers with the original petitioner have been ordered to be transposed as petitioners. It is thi3 order toy transportation that is challenged by Mr. Desai on behalf of the creditor.

(2.) THE transaction in question took place on the 5-6-1931. It was an ostensible sale effected by Neelappa, Basappa and Kalappa. Neelappa applied in 1949 for adjustment of the debt evid-enced by this transaction. The trial Court held that the transaction was a sale. In appeal, it has been held to be a mortgage and the proceedings have been sent back for taking accounts. A revisional application preferred against this order was summarily dismissed by this Court on 21-7-1952. At this stage, Basappa and Adiveppa, son of Kalappa, applied to be transposed as petitioners in these proceedings. They alleged that they were co-sharers in respect of the property, subject-matter of the original transaction, and that they were interested in prosecuting the pro- ceedings in their own right. This application has been allowed.

(3.) MR. Desai for the petitioner contends that the learned Judge was in-error in allowing the application for transposition at this late stage. He argues that the preliminary issues have al- ready been found, the matter has been agitated in three courts and it is at a very late stage that She two cosharers chose to apply for transposition. In my opinion this argument cannot succeed. Section 46, Bombay Agricultural Debtors Belief Act makes the provisions of the Code of Civil Procedure applicable to proceedings under the Act, and the proviso to Section 46 enables the Court to exercise its powers to add or strike out parties under Rule 10 of Order 1 of the Code in a proper case and on such terms as may appear to the Court to be just. This proviso makes it clear that the addition of the parties or striking them out would not necessarily be governed by considerations of delay. In the present case, the two parties that have been transposed as petitioners were shown as cosharers in column 7, and it was really the duty of the Court under Section 14 of the Act to issue notice to these co-sharers. In my opinion, it would be unfair to penalise the parties for the omission of the Court to issue notice to them. The creditor as much as the petitioner and the two co-sharers were interested in the property, the transaction in respect of which was being adjudicated upon, therefore, I am unable to accept the argument that the order passed by the learned Judge transposing the two co-sharers to the side of the petitioners suffers from any infirmity for which interference of this Court under S. 115 would be justified.