Gujarat High Court
Judgename :A.D.DESAI, B.J.DIVAN, B.K.MEHTA, D.P.DESAI, P.D.DESAI
RAMANBHAI TRIKAMLAL - Appellant
Versus
VAGHRI VAGHABHAI OGHABHAI - Respondent
S.C.A. 1408 of 1971
Decided On : 11/13/1978
Bombay Agricultural Debtors Relief Act - Article 181 - Indian Limitation Act,1963 – Section 2 sub-section (3) - Civil Procedure Code 1908 - Execution - Converted - Whether ratio of decision of Full Bench of this Court in Civil Revision Application - These proceedings arise out of an execution application filed for execution of an award in Bombay Agricultural Debtors Relief Act Application - This award was made on award the judgment-debtor had to pay an aggregate amount by seven yearly installments each - Installment was to be paid on or before Year and subsequent installments were to be paid on of every year thereafter - Installment which was to be less than was to be paid on Year - It was also directed by that award that judgment-debtor had to pay interest at rate of four per cent per annum on amount of and interest was to be paid along with last installment which was to be paid in year Converted into Gregorian calendar dates first installment was to be paid in or about May 1952 and last installment was to be paid in or about May- Held, Decision of Full Bench of our High Court in is no longer good law in so far as it says that application for execution under section 30 of B. A. D. R. Act is not be governed by procedure and the manner laid down for execution of a decree – Court also hold that decision in is no longer good law in so far as it followed Municipality and hold that even Act of 1963 words Code of Civil Procedure have to be read in residuary Article 137 - In so far as Full Bench held that no Article of Limitation Act of 1908 would apply to execution of an award made under the B. A. D. R. Act court are unable to agree with that conclusion hold that preposition applies only to an application for execution of an award in so far as award was for payment of money and that proposition would not apply so far as application is for execution of an award directing handing over of possession of any property – Application disposed
( 1 ) THE question that has been referred to this Full Bench is as follows :"whether the ratio of the decision of the Full Bench of this Court in Civil Revision Application No. 517 of 1970 decided on 27-1-1977 (since reported as Zabuben Derji v. Mansukhlal Bhagwandas 19 G. L. R. 32 is affected by the decision of the Supreme Court in A. I. R. 1977 S. C. 282 (Kerala State Electricity Board v. T. P. Kunhaliumma)" ?the facts giving rise to this Special Civil Application may be shortly stated: These proceedings arise out of an execution application filed for the execution of an award in Bombay Agricultural Debtors Relief Act Application No. 2832 of 1949. This award was made on July 19 1951 Under the award the judgment-debtor had to pay an aggregate amount of Rs. 3651 by seven yearly instalments of Rs. 525. 00 each. The first instalment was to be paid on or before Vaisakh Sudi 2 Samvat Year 2008 and the subsequent instalments were to be paid on Vaisakh Sudi 2 of every year thereafter. The last instalment which was to be less than Rs. 525. 00 was to be paid on Vaisakh Sudi 2 of Samvat Year 2014. It was also directed by that award that the judgment-debtor had to pay interest at the rate of four per cent per annum on the amount of Rs. 893 and the interest was to be paid along with the last instalment which was to be paid in Samvat Year 2014. Converted into the Gregorian calendar dates the first instalment was to be paid in or about May 1952 and the last instalment was to be paid in or about May 1958. There was a default clause in the award to the effect that if the debtors failed to pay any instalment then the judgment-creditors would be entitled to recover the whole amount with interest and they could recover the same from the fields of the opponents which were subjected to a charge by the terms of the award. It appears that on April 26 1912 the award was registered as required by the provisions of the Bombay Agricultural Debtors Relief Act. The first three instalments appear to have been paid. Though the instalments were in arrears and were not paid on due dates the creditors did not exercise the option to apply for execution of the entire remaining amount. The execution application out of which this Special Civil Application arises was filed by the judgment-creditors on June 15 1964 to recover the last four upaid instalments. On December 3d 1963 an agreement which was Exhibit 5 on the record of the case was entered into in the execution proceedings which had been initiated in 1954; under the consent terms it was agreed that the unpaid instalments should be paid on or before Chaitra Sudi 2 Samvat Year 2020 that is some time in March 1964. On January 31 1964 the earlier Darkhast being B. A. D. R. Darkhast No. 177 of 1954 was disposed of and thereafter since the agreement was not carried out on June 15 1964 the present execution application was filed. The principal question which arises for determination in this case is whether the application for execution having been filed in 1964 was barred by limitation at the time it was filed. The Full Bench of this High Court in Zabuben Devji v. Mansukhlal 18 G. L. R. 840 had held that an award made by a Court set up under the Bombay Agricultural Debtors Relief Act or under any of the provisions of that Act was not a decree. It was further held by the Full Bench that an application for execution of the award would not be governed by Article 182 of the Indian Limitation Act 1908 because Article 182 only applied to the execution of a decree made by a Civil Court. It was further held that the provisions of Article 182 of the Indian Limitation Act 1908 were not attracted. Article 181 of the Indian Limitation Act would not apply to an application for execution of an award because that Article in its application was confined to applications under the Code of Civil Procedure in respect of which no other provision was made in the Schedule to the Indian Limitation Act 1908 and it was final
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