BADEVVA IMMAMSAB PINJAR Vs. HIRIYENNA BHIMAPPA

JUDGEMENT

(1.) THE applicant in. this ease is an agriculturist living in the Navalgund taluka of the Dharwar District where a Board has been established under the Bombay Agricultural Debtors' Relief Act. Under Section 17 of that Act he filed an application for adjustment of his debts. Among the three creditors mentioned by him in his petition was the present opponent who has not filed any appearance in this revision application. THE present opponent was stated to be a creditor by reason of a sale-deed passed in his favour by the present petitioners for a sum of Rs. 800. THE applicant claimed that this transaction although in the form of a sale-deed was really a mortgage. THE Board held that the applicant was a debtor within the meaning of the Act and that the total amount of his debts did not exceed Us. 15,000. THE preliminary issues which were required to be determined under Section 35 of the Act were decided in his favour. But in considering the real nature of this transaction under Section 45 of the Act, the Board held, negativing the contention of the applicant, that it was not a mortgage but it was, what it purported to be, a sale. In respect of the debts belonging to the other creditors an award was prepared under Section 54 of the Act and in this award the name of the present opponent appears at item No.1. But the amount due to him is shown as nil as the transaction was held to be a sale out and out. THE applicant then filed an appeal in the Court of the First Class Subordinate Judge at Dharwar under Section 9 of the Act. This appeal purported to be against the order of the Board dated July 7, 1944, on which date it appears the Board held that the transaction was a sale out and out. But the award was drawn up on July 20, 1944, before the appeal was filed on September 4, 1944. THE learned First Class Subordinate Judge, however, appears to have considered that the appeal was not against the award but that it was an appeal against the decision of the Chairman dated July 7, 1944, holding that the transaction was a sale out and out. THE learned Judge considered that against such a decision there was no appeal as no appeal was provided for in the Act from a decision which fell under Section 45 of the Act. He accordingly rejected the appeal as incompetent. It is against that order that the petitioner has come in revision.

(2.) SECTION 9 of the Act deals with appeals. Under Sub-section (1) of that section an appeal lies against every award except certain awards mentioned in that sub-section. Sub-section (2) deals with appeals from decisions where no award has been made, and the only two decisions which are made appealable under that sub-section are decisions under SECTION 23 (3) and SECTION 35 (2) of the Act. It is clear that the decision that the transaction is a sale and not a mortgage is a decision under SECTION 45 of the Act and as such not appealable. But the learned First Class Subordinate Judge appears to have overlooked the fact in this case that there was not only the decision that the transaction was an out and out sale but that decision was followed up by an award comprising not only the debts of other creditors but also showing that nothing was due from the opponent as the transaction was held to be an out and out sale. Although the appeal purported to be against the decision of July 7, 1944, in fact a copy of the award was filed along with the appeal, and if the memo of appeal had been properly drafted, the appeal should have been shown as having been filed against the award under SECTION 54 and not against the decision under SECTION 45 of the Act. It is not necessary to take a very technical view of the memo. of appeal, and it is clear that in substance it was an appeal against the award in which nothing was shown to be due to the opponent as the transaction was held to be a sale out and out. A case practically on all fours with this was decided by Mr. Justice Weston in Tatya Ladappa v. Suka Sandipan (1945) Civil Revision Application No.297 of 1944, decided by Weston J. , on July 25, 1945 (Unrep.) and the following observations from the judgment in that case put the whole ease very neatly : If it was the case that the decision of the Board preceded the framing of the award by some time and the appeal was expressed to relate to the earlier decision, and not to the award, then no doubt the finding of the learned First Class Subordinate Judge would be correct. SECTION 9 of the Bombay Agricultural Debtors' Relief Act, which provides for appeal from awards, states that the only decisions appealable as such are decisions under Sub-section (3) of SECTION 23, or under Sub-section (2) of SECTION 35, and there can be no doubt that a decision under SECTION 45 is not appealable as such It seems to me, however, unnecessary to take too technical a view of words appearing in the memorandum of appeal, and, when the award bears the date of the order complained of in the memorandum of appeal, it seems to me that the appeal should be construed as being from what by the Act is made appealable rather than from what by the Act is not made appealable. SECTION 9 provides for an appeal by any party, and by 'party' I understand to mean a party to the proceeding, and not necessarily a party whose name appears in the award. For it would be absurd to hold that a party; whose name has been wrongly omitted from the award, should not have a right of appeal. I do not attach any importance to the circumstance that in this particular case the names of the present opponents do appear in the award. The name of the present applicant naturally appears in it. It is true of course that the making of the award was not the necessary consequence of the finding that the transaction of September 19, 1939, was a sale, and, if this transaction had stood alone, the present applicant had no other debts, no doubt there would be no scope for making the award. In such event, however, the Board would have had to decide that the earlier finding that the applicant was a debtor was wrong, and as a consequence dismiss the application. This finding and order would seem to be referable to SECTION 35 (2) of the Act, and against them the present applicant would have a right of appeal under SECTION 9 of the Act. Taking the appeal as one against the award, it seems to me to be clearly competent under SECTION 9 (1) of the Act, and the learned First Class Subordinate Judge was therefore wrong in refusing to entertain it.