CHATURBHAI MATHUBHAI PATEL Vs. RAMANLAL MAGANLAL SHAH

JUDGEMENT

(1.) This is an application for revision arising from execution of an award passed under the Bombay Agricultural Debtors Relief Act. When the respondent -executor made an application to the Court under the provisions of Section 38(3) of the Act, the applicant met him with a contention that he had made payment of the instalments which the respondent contended had not been paid. The applicant said that all the instalments which were due had been paid, because after the award he used to hand over the whole of the produce of the land of the applicant which had been mortgaged to the opponent. It was with regard to the debt due upon this mortgage that the award had been passed. The applicant said that after he had handed over the whole produce of the land to the opponent, he paid to him only half the price of the produce, and he, the applicant, paid towards the debt due upon the award the other half of the price of the produce each year since the passing of the award. The opponent then raised a contention that the payment which the applicant alleged could not be taken notice of, because of the provisions of Order XXI, Rule 2, of the Code of Civil Procedure. This contention of his has been upheld by the trial Court as well as by the appellate Court, and the applicant has come in revision.

(2.) NOW , it is common ground that under Section 46 of the Bombay Agricultural Debtors Relief Act, save as otherwise expressly provided by the Act, the provisions of the Code apply. Consequently, the provisions of Order XXI, Rule 2, will apply, unless there is express provision in the Act otherwise. So far as Order XXI, Rule 2(1), is concerned, it calls upon the decree -holder to certify payment or adjustment to the Court whose duty it is to execute the dereee. It is obvious that there is no express provision upon this subject in the Act. Order XXI, Rule 2, is a provision enabling a judgment -debtor also to inform the Court of the payment or adjustment, and apply to the Court to show cause why the payment or adjustment should not be certified. There is no provision upon this subject either in the Act, and consequently this Sub -rule applies. What is contended, however, is that there is provision on the subject -matter of Order XXI, Rule 2, in the Act, inasmuch as Section 38(3)(ii) says : If the Court on receipt of such application is satisfied that the debtor has made default in the payment of the instalment the Court shall transfer the award for execution to theCollector. The argument is that inasmuch as Section 38(3)(ii) requires the Court to be satisfied, which the Court can only do after it allows both the parties to lead evidence upon the subject -matter of the payment, there is a provision contrary to the provision contained in Order XXI, Rule 2(3), in Section 38(3).

(3.) IN the second instance, as has been pointed out on behalf of the opponent, the Bombay Agricultural Debtors Relief Act has repealed except to a certain extent the Dekkhan Agriculturists' Relief Act. Now, Section 71 of the Dekkhan Agriculturists' Relief Act contained a provision which made Section 258 of the Code of Civil Procedure of 1882, which corresponded to Order XXI, Rule 2(3), inapplicable to payments out of Court made in any proceeding under the Dekkhan Act, in a case where an acknowledgment by the judgment -creditor for the same has been produced, or when the payment was either admitted by him or proved. It was consequently open to a judgment -debtor to prove a payment by leading evidence. This provision has not been incorporated in the Bombay Agricultural Debtors Relief Act.