BHOGILAL FULCHAND Vs. CHHANAJI BAKERJI THAKARDA

JUDGEMENT

(1.) This is an application in revision against an order passed by the Second Joint Civil Judge (Junior Division), Ahmedabad, directing that Suit No. 2213 of 1947 pending before him should be transferred to the Chairman of the Debt Adjustment Board for disposal. The facts giving rise to this appeal are few. The Debt Adjustment Board was established in the district of Ahmedabad on 2nd January 1947. Accordingly the last date for filing applications for adjustment of dates was 31st July 1947. On 3rd September 1947, the plaintiff, a debtor, filed a suit for redemption against the defendant alleging that a document of sale which he had passed in favour of the defendant was really in the nature of a mortgage. On 8th April 1948, an application was made to the Court saying that

(2.) In our opinion, this application must succeed. It was contended by Mr. Pathak for the opponent that in view of our observations in Champaklal Chhabilrai v. Commonwealth Ass. Co., the order made by the learned Judge is correct. He invited our attention to our observations made Page 2 of 4 Bhogilal Fulchand vs. Chhanaji Bakerji Thakarda (16.09.1949 - BOMHC) at p. 785. Those observations have, however, got to be read with the facts of the case with which we are dealing. In that case the suit was filed long before the last date fixed for making an application to the Court under Section 4 of the Act, namely, 1st August 1947, and the application for the transfer of the suit was made on 29th July 1917. The only point that we had to consider was whether it was incumbent that an application should be pending before the Court on the date on which a request was made for a transfer of the suit and we held that the existence of an application was not necessary and that a pending proceeding could be transferred to the Court even in the absence of an application made under Section 4 (1) of the Act. We did not then have to consider the position which would arise if the suit was instituted after the last date fixed for making an application to the Court and the application for a transfer of the suit to the Debt Adjustment Board was consequently made after that date. That position was considered by a Division Bench of this Court in Somabhai Shanabhai v. Narandas Zaverdas, 51 Bom. L. R. 461 : (A. I. R. (36) 1949 Bom. 308). In that case, the last date for making an application under Section 4 (1) was 31st August 1945, and the suit was instituted 9 months later, i.e. on 24th July 1946, and thereafter an application was made for a transfer of the suit to the Debt Adjustment Board. It was held by the Division Bench consisting of the Chief Justice and Bavdekar J., that

(3.) We must, therefore, make the rule absolute and direct that the learned Judge himself will proceed with the suit and dispose it of in accordance with law. The applicant will get his costs from the opponent.