YADNESHAWAR MADHAV BHAWE Vs. MANGO RAOJI PATIL

JUDGEMENT

(1.) THIS Revision Application arises from a Darkhast filed by the petitioner for executing an award passed under the Bombay Agricultural Debtors Relief Act. The opponent was the agriculturist debtor in respect of whose debts the award was passed. It was provided in the award that the opponent should deposit in court annual instalments of Rs. 375 each. The amount paid by instalments was to be first utilised in discharging the dues of two mortgages. After the mortgagees were paid off, the dues of unsecured creditors were to be satisfied by rateable distribution of subsequent instalments. the petitioner was one of the unsecured creditors and was entitled to recover an amount of Rs. 1200 with interest at 4 per cent per annum. The first instalment of Rs. 375 was payable by the opponent on 15th December 1953. The opponent having failed to pay any of the instalments, the petitioner filed on 8th January 1964 a Darkhast for executing the award. The trial Court dismissed the Darkhast on the ground that the dues of the mortgagees has not been paid off by the opponent, that the petitioner was not entitled to recover his debt till the dues of the mortgagees were satisfied and that the Darkhast was maintainable and was wrongly dismissed by the trial Court. The learned Assistant Judge, however, dismissed the petitioner's appeal because he held, following the decision by Mr. Justice Gokhale in Jankibai Abaji v. Bhikaji Raghunath, (1957) 59 Bom LR 610 that no appeal was maintainable from the order of the trial Court. The petitioner has filed this revision application from the decision of the learned Assistant Judge.

(2.) INITIALLY this Revision Application came for hearing before Mr. Justice Patel. The learned Judge referred it to a Division Bench because he found it to be a Division Bench because he found it difficult to accept the view expressed in (1957) 59 Bom LR 610. Thus the question which we have to decide is , whether an order dismissing an --- application for executing an award passed under the B. A. D. R. Act is appealable and whether the view to the contrary expressed in Jankibai Abaji's case, (1957) 59 Bom LR 610 is correct.

(3.) SUB- section (3) of Section 38 of the B. A. D. R. Act provides for the execution of awards passed under the Act. Clause (i) of that sub-section says that if a debtor makes default in payment of any instalment due under an award to any creditor such creditor may apply in the prescribed form to the court for execution of the award. Clause (ii) lays down that if the court is satisfied that the debtor has made default in the payment of the instalment, the court shall transfer the award for execution to the Collector and there upon the Collector shall recover the amount of the instalment from the debtor as arrears of land revenue. Clause (iii) provides that if the court has passed any property under clause (v)of sub-section (2)of Section 32, such order shall be executed by the Court "as if it were a decree passed by it. "