SARUBAI Vs. BABU BHIKAJI TAKLE

JUDGEMENT

(1.) THE petitioners submitted an application to the Debt Adjustment Court at Poona on 31-7-1947, for adjustment of their debts under Section 4 of the B. A. D. B Act. By that application the petitioners claimed that they were debtors within the meaning of the B. A. p. B. Act. It may be mentioned that the last date for filing the application was 31-7-1947, and the application was filed on the very last day. On 18-8-1951, the petitioners applied by the application Exhibit 26 for amendment of the petition alleging that they were agricultural labourers and not debtors within the meaning of the B. A. D. B. Act. This application was granted ex parte and the issues raised by the Court were amended. There, after on 27-12-1951, the proceedings reached hearing before the Debt Adjustment Court. The second petitioner was examined and the court found that the petitioners were not residents of Poona but were residents of Khed which was not within the territorial limits of the Debt Adjustment Court at Poona. The learned Judge, therefore, ordered that the papers be returned for presentation to the proper Court. The application was accordingly re-presented on 28-12-1951, to the Debt Adjustment Court at Khed. It appears that even though the learned Judge of the Debt Adjustment Court had granted the application Exhibit 26 for amendment of the petition, no formal amendment was made in the application filed by the petitioners. On 14-11-1952, the petitioners again applied for amendment of the application and for an order for effectuating the amendment showing that the petitioners were agricultural debtors. That application was also granted but ex parte and issues were raised in the light of the amended application. Thereafter the opponents applied for review of the order passed on the ground that the order of amendment was made without giving them notice and without hearing them on the objections which may be raised by them. Beview was granted and the Court ultimately held that the amendment application should be rejected. On the view taken by the Khed Court that the petitioners were debtors and they should have filed an application for adjustment of debt under the B. A. D. B. Act of 1939. the application was rejected on 16-2-1953, on the view that it was barred by limitation. An appeal was preferred against that order to the District Court and the order passed by the learned trial Judge was confirmed by the Extra Assistant Judge of Poona. The petitioners-have applied to this Court in revision.

(2.) NOW it is undisputed that the Poona Court had no territorial jurisdiction to entertain the proceedings filed by the petitioners, but the proceedings were pending for nearly four years and five months in that Court. Some time before the order returning the papers for re-presentation to the proper Court was passed the petitioners had applied for amendment of the application and that application was granted. If the petitioners were prosecuting the application in good faith and with due diligence the time which was taken up in prosecuting the application in the Poona Court is liable to be excluded under Section 14 (1) of the Limitation Act read with Section 29 thereof. The fact that the application was filed by the petitioners on the allegation that they were debtors did not prevent them from showing at the trial that they were agricultural labourers and entitled to the benefit of Section 24 (2) of the B. A. D. B. Act. This Court has held in shankar Nagu v. Mahi-bub Bandu, 54 Bom LB 938: (AIR 1953 Bom 123) (A) that where an application is filed under Section 4 of the B. A. D. R. Act for adjustment of debts within the period of limitation prescribed by Section 4 there; of and it is found at the trial that the petitioner is not a debtor within the meaning of the Act, he is still entitled to prosecute the application as an agricultural labourer within the meaning of Section 24 (2) of the Act In that case an application was filed on 24-4-1947, for adjustment of debts under Section 4 of the B. A. D. R. Act. It was found at the trial that the applicant was not a debtor within the meaning of the Act but he claimed the status of an agricultural labourer under Section 24 (2) and the learned Chief Justice, who decided the case, held that the petitioner having alleged that he was an agricultural labourer and his application having been made before 1-8-1947, (which was the last day for filing the application) it must be regarded as properly filed and the petitioner was entitled to have the same heard and disposed of according to law.

(3.) THE only difference between that case and the present case is that in that case the application was presented in a Court which had territorial jurisdiction to entertain it, whereas in the present case the application was presented initially in a Court which had no territorial jurisdiction to entertain it. But in my view the application of the principle is not affected by reason of that distinction. If the petitioners are entitled to the benefit of Section 14 (1), Limitation Act, the application having been made on 31-7-1947, the petitioners are entitled to show at the trial that they are agricultural labourers and hence entitled to the benefit of Section 24 (2) of the B. A. D. B. Act.