DAVE, C. J. - (1.) THIS is a writ application under Arts. 226 or 297 of the Constitution of India and it arises in the following circumstances :
(2.) NON-petitioners No. 3 and 4 viz. , Bansidhar and Ram Avtar filed a suit against petitioner Sheo Dayal Sharma in the Court of Senior Civil Judge, Jaipur Distt. Jaipur for recovery of Rs. 13,970/ -. On 17. 7. 58, the petitioner, who was defendant in that case, presented an application before the said Court under sec. 5 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957, for staying the proceedings in the above suit on the ground that he was an agriculturist. Before this application could be disposed of, by that Court, the petitioner filed another application under sec. 6 of the said Act before the Civil Judge, Jaipur District Jaipur, which was the Debt. Relief Court. This application was presented on 4. 9. 1958. The Civil' Judge, admitted this application and notice of the admission was given to the Court of Senior Civil Judge. On 17. 9. 1958 the Senior Civil Judge passed an order to the effect that intimation of the admission of application before the Debt. Relief Court having been received further proceedings in his Court be stayed. Thereafter on 22. 7. 59, the petitioner presented an application before the Debt Relief Court to the effect that by mistake Ram Avtar plaintiff was not impleaded and, therefore, he should be allowed to be added as a party in addition to plaintiff Bansidhar. The Debt Relief Court came to the conclusion that the application dated 22. 7. 1959 was time-barred since it was not made within 90 days from the order dated 17. 9. 1958. Aggrieved by this order dated 8. 3. 1960, the petitioner presented a revision application in the Court of the District Judge, Jaipur District, Jaipur. The revision application was, however, dismissed on 17. 10. 1960. The present application is thus directed against the orders of the Civil Judge and the District Judge passed on 8. 3. 1960and 17. 10. 1960, respectively. It is urged by learned counsel for the petitioner that if his client's application dated 17. 7. 1958 were allowed by the Senior Civil Judge and 90 days time was given to him for presenting an application before the Debt Relief Court, the impugned orders could be justified, but before his application under sec. 5 (1) was disposed of by that court, he had presented another application dated 4. 9. 58 before the Debt Relief Court and when that application was admitted by that court and its notice was given to the Court of the Senior Civil Judge, the latter proceeded under sec. 6 (3) of the Act. Thus, according to the learned counsel, the proceedings having been stayed under sec. 6 (3) of the Act, the provision of sec. 5 (3) did not come into play ; there was no period of limitation prescribed for amendment of his application dated 4. 9. 1958 and both the courts had refused to exercise their jurisdiction wrongly by dismissing his application for amendment and proceeding with the matter. In reply, it is urged by learned counsel for respondents No. 3 and 4 that the petitioner's application dated 4. 9. 1958 was defective inasmuch as only one of the two plaintiffs was impleaded and, therefore, it should be deemed that there was no valid application before the Debt Relief Court and there was no valid order about its admission, nor there was any valid notice to the court of the Senior Civil Judge. According to learned counsel, the stay order passed by the Senior Civil Judge, on 19. 9. 1958 should, under the circumstances, be deemed to have been passed on the petitioner's application dated 17. 7. 1958. Thus, if 90 days period be computed from 17. 9. 1958 when the stay order was passed, the petitioner's application dated 22. 7. 59 was obviously time-barred and it was rightly dismissed by the Courts below. Before we proceed to examine the arguments raised by learned counsel on either side, it would be proper to reproduce here secs. 5 and 6 of the Act, as they stood on the relevant dates. It may be noted here that these two sections have been amended, but since the amended law does not apply to the present case, we have considered it proper to reproduce these sections, as they stood before the amendment. Sec. 5 - Stay of Proceedings - When a plaint is presented to a court of civil jurisdiction against a debtor who is an agriculturist or when a petition is made for adjudication of such person as an insolvent, such debtor may, at any time before the issues are settled, or in a suit before a court of small causes, before evidence is recorded, or in insolvency proceedings, before the order of adjudication is passed, apply to the court to stay proceedings in order to enable him to file an application under sec. 6 before a Debt Relief Court and the court shall, unless, for reasons, to be recorded in writing, it is of opinion that such application is prima facie not admissible, stay proceedings for a period not exceeding ninety days : Provided that, if any such plaint or petition has been presented to or made before, and shall have been pending at, the commencement of this Act, an application for stay of proceedings under this section may be made by an agriculturist debtor within six months of such commencement. Every such application shall contain the following particulars and shall be signed and verified in accordance with O. VI, r. 15 of the first Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) : - (a) a statement that the debtor is an agriculturist : - (b) the place where he normally resides; (c) a statement of all claims outstanding against him, including those referred to in sec. 4, as nearly as may be ascertainable and the names and address of his creditors; (d) a statement off all his property, including claims due to him together with a specification of the value of such property and the place or places at which any such property is to be found ; (e) such other particulars as may be prescribed. (3) If a debtor fails to apply to a Debt Relief Court within the period Specified in the order made under sub-sec. (1), the suit or insolvency proceedings, as the case may be shall resume and the debtor shall not be entitled to apply thereafter for the stay of the same or to file an application under sub-sec. (1) of sec. 6. " Sec. 6 - Application by Agriculturist to Debt Relief Court - (1) Any debtor who is an agriculturist may file an application before the Debt Relief Court having jurisdiction, praying for the determination of his debts. Such application shall contain the particulars stated in sub-sec. (2) of sec. 5. (2) An application under sub-sec. (1) shall be made to the Debt Relief Court having jurisdiction in the area in which debtor ordinarily resides of earns his livelihood. (3) When an application made under sub-sec. (1) is admitted and when notice of such admission is given to the Court concerned, any proceedings against the debtor for recovery of debts or for adjudging him an insolvent, pending before any court referred to in sub-sec. (1) of sec. 5 shall be stayed. If the application is rejected, the debtor shall not be entitled to file another application in any Debt Relief Court and any proceeding so stayed shall be resumed. " It would appear from the perusal of sec. 5 that when a plaint is presented before a Civil Judge against a debtor who is an agriculturist it is open to such debtor to apply to th|at court to stay the proceedings in order to enable him to file an application under sec. 6 before a Debt Relief Court. Such an application should, however, be presented before the issues are settled, or in a suit before a court of small causes, before evidence is recorded. Sub-sec. 3 then provides that if such application of a debtor is allowed and he is given time by that court which cannot exceed 90 days, it is incumbent upon him to file an application before the Debt Relief Court within that period and if he fails to do so, he is debarred from presenting an application under sub-sec. 1 of sec. 6, or another application for the stay. Then the perusal of sec. 6 shows that a debtor who is an agriculturist is given an option to file an application before the Debt Relief Court having jurisdiction for the determination of his debts. If such an application is admitted and notice of the admission is given to the Court in which the suit is filed, it is incumbent for that court to stay the proceedings. Now, what happened in the present case was that although an application under sec. 5 (1) was presented by the petitioner on 17. 7. 1958, it was not disposed of by that court before he presented an application under sec 6 in the Debt Relief Court on 4. 9. 1958. The application under sec. 5 (1), therefore, remained pending in the Court of Senior Civil Judge. The Debt Relief Court admitted the application dated 4. 9. 1958 and gave the notice of that admission to the Senior Civil Judge. It was unfortunate that after that notice was received, the learned Senior Civil Judge while staying the proceedings from 17. 9. 1958 referred to both in the application which was filed under sec. 5 (1) and the notice of the Debt Relief Court received by him. We are of opinion that after the notice of the admission of the application before the Debt Relief Court was received by the learned Senior Civil Judge, there was no option left for him but to pass the stay order under sub-sec. 3 of sec. 6 of the Act and the question of deciding the application which was filed earlier on 17. 7. 1958 could not arise thereafter. We find it difficult to accept the contention raised by learned counsel for the respondents to the effect that the petitioner's application dated 4. 9. 1958 being defective the order passed by the Senior Civil Judge dated 17. 7. 1958 should be deemed to have been passed on the application dated 17. 7. 1958. It may be observed that it was not known to the learned Senior Civil Judge on 17. 9. 1958 that the application presented by the petitioner on 4. 9. 1958 was defective in (any manner. It is noteworthy that in his order dated 17. 9. 1958 he pointedly mentioned the notice received by him from the Debt Relief Court and he also observed that 'this court has no option except to stay the proceedings till the disposal of Sheo Dayal's application under the said Act. ' It is obvious from the perusal of his order that he was not passing any order under sec. 5 (1) allowing some time to the petitioner to file an application before the Debt Relief Court. An application was already filed before the Debt Relief Court and it had sent the notice of its admission to the Senior Civil Judge, before he passed his order on 17th September, 1958. It is very candidly conceded by the learned counsel for respondents Nos. 3 and 4 that if the petitioner had not filed the application dated 17th July, 1958 before the learned Senior Civil Judge and if he had only filed the application dated 4th September, 1958 before the Debt Relief Court, then his application dated 22nd July, 1959 for amendment would not have been time-barred because no period was prescribed for amendment of such an application. In this view of the matter, it is clear that both the courts below committed an error in dismissing the petitioner's application dated 22nd July, 1959 and in not exercising their jurisdiction to proceed further. The writ application is, therefore, allowed and orders passed by the learned Civil Judge and the District Judge dated 8th March, 1960 and 17th October, 1960 respectively, are hereby quashed. Since the position of law was not free from difficulty, we leave the parties to bear their own costs. . ;