RAJARAM KESHEO MARATHE Vs. BINDRAWAN ZAMIPRASAD

JUDGEMENT

(1.) IT will be convenient to set out first some facts and dates. On 1st April 1940 Rajararh sold field No. 102/2 in mouza Kapshi to Tulsiram for a sum of Rs. 200. Mt. Tanabai, who was a co-occupant, brought a suit to preempt this sale on 81st March 1941. In that suit Tulsiram and Rajaram were made defendants. She obtained a decree for pre-emption on 7th January 1942. No appeal was preferred against this decision. On 17th March 1942 Mt. Tanabai sold this sub-division to the present plaintiff Bindraban. In the meantime Rajaram, with his joint brother Sadasheo, had applied to the Debt Relief Court for the settlement of his debts on 3rd March 1941 and included among his debts a sum of Rs. 200 owed to Tulsiram. That Court decided that this item was not a debt inasmuch as the document by which it was sought to establish it was not a mortgage, as the brothers alleged, but a sale-deed. "The Additional District Judge, Akola, sitting in revision under the pro-visions of the Relief of Indebtedness Act, held that the document evidenced a mortgage and not a sale and set aside the Debt Relief Court's order dismissing the debtor's application and re. turned the case to the Debt Relief Court fee fresh disposal. This was on 13th April 1942. It is not apparent what action was taken on this. When Bindraban, as the result of his purchase from Mt. Tanabai, went to take possession of the field his possession was resisted by Rajaram and Sudasheo and consequently he brought this suit, out of which the present appeal arises, for possession on 28th October 1942.

(2.) THE trial Court found that the decree passed in the pre-emption suit in favour of Mt. Tanabai was a nullity in view of the finding in revision under the Relief of Indebtedness Act that the transaction was a mortgage and not a sale, holding that the jurisdiction of the civil Court was barred as the civil Court was exercising jurisdiction about the very matter which was pending before the Debt Relief Court and that consequently no title could be conferred on Mt. Tanabai and dismissed the plaintiff's suit. The Court incidentally held that in view of the fact that Rajaram was a defendant in the preemption suit and did not raise the plea that the transaction was not a sale and did not challenge the proceedings in any way, the doctrine of res judicata would have operated against the pre. sent defendants Rajaram and Sadasheo had it not been for the fact that the decree in the pre. eruption suit was a nullity.

(3.) SECTION 23, Relief of Indebtedness Act, runs: Subject to the provisions of Section 20, the jurisdiction of the civil Courts and the Courts having jurisdiction under the Provincial Insolvency Act, 1920 (V [5] of 1920), or the same Act shall be barred in respect of...(a) any matter pending before a Debt Relief Court.