R.B.MEHTA - (1.) This is a revision application against an order passed by the learned District Judge Broach dismissing the appeal of the petitioner against an order made by the learned Civil Judge Junior Division Jhagadia in execution proceedings against the present petitioner who was original defendant No. 5 in the suit in which the relevant decree was passed. This revision application raises a question under the Bombay Agricultural Debtors Relief Act 1947 (hereinafter referred to as the Act). The facts leading to this application are this way: The opponent-plaintiff filed a Darkhast No. 7/1954 in the Court of the Civil Judge Jr. Dn. Jhagadia for execution of a decree dated 3rd December 1948 which was passed in his favour against several defendants one of whom was the present petitioner (defendant No.5). The decretal amount is Rs. 1952-13-2. The defence taken by the present petitioner in the said Darkhast was that the relevant debt was extinguished as no application was made under sec. 4 of the Act on the ground that the judgment-debtor was a debtor under the said Act. The executing Court decided against the petitioner holding that the petitioner was not a debtor under the Act as he was not cultivating land personally for two years immediately preceding the date of coming into operation of the Act. On appeal the learned District Judge Broach confirmed the order of the trial Court. It is against this order of the learned District Judge that this revision application is filed.
(2.) It is necessary to state that both the debtor as well as the creditor are from the former Rajpipla State. The Act was applied to the former Rajpipla State on 15th September 1948 on its merger with the former State of Bombay by the Bombay Merged Areas (Amendment of Laws) Act 1949 - The date 1st August 1947 in sec. 4 was substituted by the date 15 June 1949 for the territory of the former Rajpipla State. Sec.4 of the Act provides as follows: "(1) any debtor ordinarily residing in any local area for which a Board was established under section 4 of the repealed Act on or after the 1st February 1947 or his creditor may make an application before the 1st August 1947 to the Court for the adjustment of his debts. By section 15 of the said Act it is provided that every debt due from a debtor in respect of which no application has been made under sec. 4 within the period specified in the said section 4 shall be extinguished. It was contended by the judgment-debtor that he was a debtor as defined in this Act and that in respect of his debt no application was made either by him or by his creditor under sec. 4 of the Act and that therefore under sec. 15 of the Act the debt due to the judgment-creditor was extinguished and that therefore no execution could be levied against him. Both the Courts however came to the conclusion that sec. 4 of the Act was not applicable in this case as the judgment-debtor did not satisfy the definition of a debtor under the Act. A debtor is defined by sec.2(5) as follows: (5) debtor means (a) an individual (i) who is indebted; (ii) who holds land used for agricultural purposes or had held such land at any time not more than 30 years before the 30th January 1940 which has been transferred whether under an instrument or not and which transfer is in the nature of a mortgage although not purporting to be 30; (iii) who has been cultivating land personally for the cultivating seasons in the two years immediately preceding the date of the coming into operation of this Act or of the establishment of the Board concerned under the repealed Act; and (iii) whose annual income from sources other than agriculture and manual labour does not exceed 33 P. C. of his total annual income or does not exceed Rs. 500/whichever is greater.
(3.) The contention of Mr. Desai was that by reason of the facts which will be presently referred to the land in question being in the possession of a receiver and cultivated by the receiver through either the tenants or servants or hired labourers the possession of the receiver should be deemed to be the petitioners possession and that the cultivation by the receiver in this manner should be deemed to be the personal cultivation of the petitioner. It is the case of the petitioner that his father was cultivating the land in question since 1935; that his father died on the 28 December 1942; that the petitioner being born in 1926 was at the time of the death of his father a minor and that immediately after his fathers death the petitioner was dispossessed of the land in question. The petitioner therefore filed a suit on the 2nd February 1944 in the Court of the former State of Rajpipla and immediately after filing of the suit a receiver was appointed who took possession of the land in question. After the merger the suit was renumbered in the Jhagadia Court and the Jhagadia Court passed a decree in favour of the plaintiffs title and also for possession on 30th November 1950. Now personal cultivation is required under clause (iii) of sec.2 (5)(a) of the Act for two years immediately preceding the date of the coming into operation of this Act. So in this case the personal cultivation that would be required would be for two years prior to 15th September 1945. In other words he should have cultivated personally for two cultivating seasons prior to 15th September 1948. Both the Courts came to the conclusion that this condition was not satisfied in regard to the petitioner. Mr. Desai's argument however was that the suit was decreed in favour of the petitioner on 30th November 1950 and that prior to that date the lands were in possession of the Receiver who had got the lands cultivated either through the tenants or through servants or hired labourers when the Receiver was appointed sometime in 1944. Mr. Desai contended that the Receiver cultivated this land for at least two years prior to 15th September 1948 and that therefore the cultivation by the Receiver should be deemed to be cultivation by the petitioner. Mr. Desai in support of his argument relied on the case of Sri Sri Nandkishore Ananga Bhima Dev Kesari Gajanathi v. Susilamala Patta Mahadevi and others A. I. R. 1940 Madras 850 where on a difference between Mr. Justice Burn and Mr. Justice Stodart the case was referred for the opinion of Mr. Justice Wadsworth and Mr. Justice Wadsworth agreed with the opinion expressed by Mr. Justice Burn to the effect that the possession of a receiver pendente lite must be held to be the possession of the party who is ultimately declared to be successful. At page 850 of the report Mr. Justice Burn observes as follows: But in my opinion and in this my learned brother differs from me a complete answer to these arguments is furnished by the principle that the possession of a receiver pendente lite must be deemed to be the possession of the party who is ultimately declared successful. Here the plaintiff had succeeded in the Court of first instance He was then declared to be entitled to immediate possession of the estate. He applied to the Court to be put into possession - That application was stayed. Nevertheless the defendant was not allowed to remain in possession. A receiver was appointed and put in charge of the estate. But the estate is a profit yielding concern and the receiver had strictly to account for the profits. On whose behalf did he hold these profits ? The answer. must be in my opinion on behalf of the party ultimately declared successful. And if he had to account for the profits to that person he should be deemed to have held the estate on behalf of that person. ;