Dixit, J. - (1.) On 14-9-1935, the petitioner executed in favour of the first opponent a document purporting to be a deed of sale. The petitioner is a resident of Poona, while the first Opponent resides at Saswad in the Poona District. After the passing of the Bombay Agricultural Debtors Relief Act, 1947, a Board was constituted on 1-2-1947 to enable a debtor or his creditor to make an application for adjustment of the debts. The time before which the application was to be made was 1-8-1947. Therefore, an application has to be made on or before 31-7-1947. On 15th July, 1947 the petitioner made an application in the Court of the Civil Judge, Junior Division, Saswad, for a declaration that the sale deed dated 14-9-1935 for the consideration of Rs. 800 was intended to operate as a mortgage. On 13th April, 1948, this application was returned to the petitioner to be presented to the proper Court and as the petitioner resided in Poona, he presented the application on 14-4-1948 in the Court of the Civil Judge, Junior Divison, Poona. On 23-12-1954, the learned Judge of the Court made an order, declaring that the transaction dated 14-9-1935 was in the nature of a mortgage and following the declaration, he made a further order that, on taking accounts, the debtor was not liable to pay anything to the creditor. The creditor and another person preferred an appeal in the District Court, Poona, under Section 43 of the Act, and that appeal was heard by the Second Extra Assistant Judge, Poona, who, on 10-7-1956, allowed the appeal and dismissed the application made by the petitioner for adjustment of his debts. Feeling aggrieved by the appellant order, the debtor has come up on this revisional application, and the point taken on his behalf by his learned Advocate, Mr. N. D. Dange, is that the Court below was wrong in holding that the application presented in the Court of the Civil Judge, Junior Division, Poona, was barred by limitation.
(2.) In order to appreciate the contention raised, it is necessary to refer to some of the provisions of the Act. Section 2 (4) defines a "debt." Section 2 (5) defines the expression "debtor." Section 4 (1) provides: "Any debtor ordinarily residing in any local area for which a Board was established under Section 4 of the repealed Act on or after the 1st February, 1947, or his creditor may make an application before 1-8-1947 to the Court for the adjustment of his debts." The requirements of Section 4 (1), therefore, are (1) a debtor must ordinarily reside in any local area for which a Board was established under Section 4 of the repealed Act; (2) the Board must have been established on or after 1-2-1947 and (3) whether a debtor or his creditor, the person has to make an application before 1-8-1947 to the Court. It is not in dispute that the petitioner ordinarily resides in Poona. It is not in dispute also that the Board was constituted under Section 4 of the repealed Act on 1-2-1947. It is also not in dispute that the first opponent is a resident of Saswad in the Poona District. The narrow question which we have to decide is whether Section 4 (1) prescribes any period of limitation for the making of an application for the adjustment of debts. Two other the debtor's sections may be noticed. One oe these is Section 43 which deals with appeals. Section 43, by sub-section (2), provides: "An appeal from the Court shall lie to the District Court, and the appeal shall be made within sixty days from the date of the coming into force of the Bombay Agricultural Debtors' Relief (Amendment) Act, 1948, or from the date of the order or award, as the case may be, whichever is later. In computing the period of sixty days the provisions contained in sections 4, 5 and 12 of the Indian Limitation Act, 1908, shall so far as may be, apply." Section 46 is another section which may be referred to and it says: "Save as otherwise expressly provided in this Act, the provisions of the Code of Civil Procedure, 1908, shall apply to all proceedings under this Chapter." It is, therefore, plain that the procedure applicable to a proceeding under the Bombay Agricultural Debtors Relief Act, 1947, is the procedure laid down in the Code of Civil Procedure, save in so far as it is otherwise expressly provided in the Act. With regard to the question of the applicability of the Indian Limitation Act, there is no section which refers to the Act expressly save Section 43 to which I have already referred. Now, what happened in the present case was this. The debtor made his application on 15-7-1947. He had to make the application before 1-8-1947. So far, therefore, as the making of an application before a specified date is concerned, the debtor did make an application before the due date. But the debtor did not make the application to the Court within whose jurisdiction he was ordinarily residing. As I have already pointed out, he made the application in the Court of the Civil Judge, Junior Division, Saswad, while he was a resident of Poona. As he did not present the application to the proper Court, the application was returned to the petitioner for presentation to the proper Court and this, he filed in the proper Court on 14-4-1948. If therefore, the debtor presented his application in the proper Court on 14-4-1948, then he did not make his application for adjustment of his debts before 1-8-1947 within the meaning of Section 4. It is obvious that the debtor's application must fail as he did not comply with the provisions of Section 4 (1).
(3.) But it is contended on behalf of the petitioner that even so, the petitioner's application must be taken to have been made before 1-8-1947, because the petitioner was entitled to rely upon the provisions contained in Section 14(2) of the Indian Limitation Act. Section 14 (2) of the Indian Limitation Act may be quoted with advantage. It runs as follows: "In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded where such proceeding is prosecuted in good faith in a Court, which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it." In order to enable the petitioner to rely successfully upon the provisions contained in Section 14(2), he must show that his case falls within Section 29(2), of the Indian Limitation Act.;