BHIKA RAGHO MARATHE Vs. RATANCHAND REOCHAND SHAH

JUDGEMENT

(1.) THIS revision petition raises an interesting question involving the interpretation of Section 25, Clause (i), of the Bombay Agricultural Debtors Relief Act.

(2.) THE facts are as follows : The petitioners executed a sale -deed, dated January 17, 1936, conveying certain fields for a sum of Bs. 2,500 in favour of the opponent. The petitioners continued to be in possession of the conveyed fields. A dispute arose between the parties regarding the nature of the transaction, and that dispute was referred by them to the decision of an arbitrator. The arbitrator gave his award on December 18, 1940. The award stated that the transaction dated January 17, 1936, was a sale out and out. The award further stated that the petitioners were to remain in possession of the conveyed fields and were to pay Rs. 2,500 in 10 instalments of Rs. 250 per annum and, after the whole of the amount of Rs. 2,500 was paid, the opponent was to execute a sale -deed in favour of the petitioners. The petitioners were also directed to pay as rent a sum of Rs. 135 per annum. At first, the petitioners tried to object to the award but, subsequently, gave up the objection, and a decree was passed by a Court in terms of the award. The petitioners paid a sum of Rs. 1,450 under the decree, but committed defaults thereafter. Therefore, the opponent filed darkhast No. 183 of 1950 for recovering possession of the lands. Thereafter, the petitioners made an application under the Bombay Agricultural Debtors Relief Act, for getting the true nature of the transaction dated January 17, 1936, adjudicated. The application was filed under Section 24 of the Bombay Agricultural Debtors Relief Act. The petitioners contended that the true nature of the transaction was a mortgage. The opponent contended that the transaction was, in fact, an out and out sale, and, secondly, that the contention of the petitioners was barred by the provisions of Section 25, Clause (i), of the Bombay Agricultural Debtors Relief Act. That section is as follows: 25 Nothing in Section 24 shall apply to - (i) any transfer which has been finally adjudged to be a transfer other than a mortgage by a decree of a Court of competent jurisdiction or by a Board established under Section 4 of the repealed Act;... The Bombay Agricultural Debtors Relief Court came to the conclusion that the true nature of the transaction was that it was a mortgage, and that the contention of the petitioners was not barred by Section 25(i) of the Bombay Agricultural Debtors Relief Act. Aggrieved by the decision, the opponent went in appeal. The appellate Court agreed with the finding of the Bombay Agricultural Debtors Relief Court that the transaction was, in fact, a mortgage, but, disagreed with the view of the Bombay Agricultural Debtors Relief Court that the contention of the petitioners was not barred by Section25(i). The appellate Court came to the conclusion that the award decree came within the purview of Section 25(i), and, accordingly, it held that the Bombay Agricultural Debtors Relief Court was prevented from adjudicating the true nature of the transaction by virtue of the award -decree. Aggrieved by the decision, the petitioners have come in revision.

(3.) HOWEVER , in my judgment, the fact that an arbitrator is not a Court, does not settle the question about the scope of Section 25(i). That fact is not at all germane for reaching a decision about the applicability of Section 25(i). In order that an adjudication regarding the nature of a transfer may be a bar, it is not germane to inquire whether it is by a Court or an arbitrator. The real question to determine is whether the adjudication was by a decree of a competent Court. Even though an adjudication initially may have been made by an arbitrator, it will still be a bar provided the adjudication relied upon is not that of the arbitrator but it happens to be merged in the decree of a competent Court, If and when such a merger takes place and, in law, the decree is the final document adjudging the rights of the parties, the adjudication would nonetheless be by the decree of a Court even though the adjudication by the arbitrator was the source of the adjudication embodied in the decree. Mr. Jahagirdar's contention was that, in order to be a bar, the adjudication must be by a Court and the fact that the adjudication is by a decree is not the essence of the matter. I do not agree. The submission of Mr. Jahagirdar is contrary to the plain language of the section. If the argument of Mr. Jahagirdar were correct, then the language which would have been used by the Legislature would have been 'Nothing in Section 24 shall apply to a transfer which has been finally adjudged by a Court of competent jurisdiction.' Such is not the language used by the Legislature. What the Legislature states is that the transfer must be one adjudged by a decree of a competent Court. The latter expression is a whole and composite expression and every word therein is important and not merely the word 'Court'. Therefore, the real question to be determined is whether the nature of the transaction has been adjudged to be a sale by a decree of a competent Court. Now, when an award is given and an application is made in a competent Court to file it, obviously, the proceedings are started to obtain a decree from that Court and if the Court does pass a decree, the decree is not that of the arbitrator but is that of and by the Court.