Mritunjoy Mukherji vs Ashutosh Thakur

Das, J.—This is an appeal by the decree-holders under Clause 15 of the Letters Patent against a decision of Roxburgh J. dated May 3, 1950, in Second Miscellaneous Appeal No. 17 of 1949. The facts are not in controversy and may be stated as follows:

The Respondents judgment-debtors made an application u/s 37A of the Bengal Agricultural Debtors Act for relief under that section. An award was made on September 3, 1944, and was registered on December 19, 1944.

In the meantime, there was an appeal against the decision of the Board to the appellate officer. The appellate officer affirmed the decision of the Board on January 18, 1947. There was a petition in revision u/s 40A of the Bengal Agricultural Debtors Act to the District Judge. The petition in revision was rejected on June 11, 1947.

On December 20, 1947, the judgment-debtors presented a copy of the registered award before the Third Court of the Munsif at Bankura. An application praying for relief u/s 37A(8) of the Bengal Agricultural Debtors Act was also filed on the same date. The decree-holders raised an objection that the relief u/s 37A(8) of the Bengal Agricultural Debtors Act could not be granted, because the presentation of the award, having been made beyond three years from the date of the award, the right to relief provided for in Section 37A(8) was barred under the provisions of Article 181, sch. I of the Indian Limitation Act.

The trial court overruled the objection of the decree-holders and made an order in terms of Section 37A(5) of the Bengal Agricultural Debtors Act.

An appeal by the decree-holders to the District Judge was dismissed.

There upon, the decree-holders preferred the aforesaid Second Miscellaneous Appeal to this Court, which was dismissed by Roxburgh J. It is the propriety of this decision which is sought to be challenged in this appeal.

Mr. Chatterjee, appearing for the decree-holders Appellants, has contended that, as the presentation of an award u/s 37A(5) of the Bengal Agricultural Debtors Act gives rise to a miscellaneous proceeding, in which the judgment-debtors get the reliefs provided for in that sub-section, quite apart from the question whether an application is necessary to be filed or not, the presentation of the award must be regarded as the filing of an application which attracts the provisions of Article 181, sch. I of the Indian Limitation Act, as such, the right to relief becomes barred under the third clause of Article 181 after the lapse of three years from the date of the award when the right to apply first accrues to the judgment-debtors.

Before I deal with this contention I may refer to Section 37A(8) of the Bengal Agricultural Debtors Act, which provides. that the debtor may present a copy of the award made under Sub-section (5) to the civil court, or the Certificate Officer, at whose order the property was sold, and such court or Certificate Officer shall, thereupon, direct that the sale be set aside, and that the debtor, together with any person who was in ''possession of the property sold or any part thereof at the time of delivery of possession of such property to the decree-holder as an under-tenant of the debtor and who has been evicted therefrom by reason of such sale be restored to possession of such property with effect from the first day of Baisakh next following or the first day of Kartick next following, whichever is earlier.

In Order that the court may proceed to give the reliefs contemplated under that Sub-section, the debtor is required to present a copy of the award made under Sub-section (5) of Section 37A. The award in this sub-section must obviously mean an award as contemplated by the Act and the statutory rules framed thereunder. The word "award" has been defined in Section 2(4) of the (Bengal Agricultural Debtors Act. Section 1 of Bengal Act II of 1942 brings an award u/s 37A within the purview of the definition of an award u/s 2(4) of the Bengal Agricultural Debtors Act. Rule 103 of the rules framed under the ''Bengal Agricultural Debtors Act requires that an award signed u/s 25 of the Bengal Agricultural Debtors Act must be registered. In view of the amendment to Section 2(4), the award which is signed u/s 25 of the Act includes an award u/s 37A of the Act. As such an award, which is made u/s 37A of the Bengal Agricultural Debtors Act, requires registration.

In the present case, the award u/s 37A was registered on December 19, 1944. It appears from the copy of the registered award, which was presented by the debtors in the present case, that the required stamp for obtaining a copy is dated September 25, 1947. The certified copy of. the award was ready on September 30, 1947. At least six days were occupied in obtaining a copy of the registered award in this case. As Section 37A(8) requires the debtor to present a copy of the award, the debtors are entitled to an exclusion of the time for obtaining a certified copy of the award. Conceding that Article 181, sch. I, of the Indian Limitation Act applies, the right to apply accrues at the earliest when an award is registered as required by the Rules. The right to apply, therefore, accrued in the present case at the earliest on December 19, 1944. As Section 37A(8) requires the debtors to present a copy of the award, the time for obtaining the copy must be added in calculating the time within which the presentation of the award should be made. If we add this time, the debtors in the present case would be entitled, conceding that Article 181 applies, to a period of three years and six days from the date of registration of the award within which they could present the award before the appropriate court. In the present case, the award was presented on December 20, 1947. The presentation, in the present case, was thus within time and no question of limitation, therefore, arose in the facts of the present case.

Moreover, it seems to me that the relief to which the debtors are entitled u/s 37A(5) is not a relief in the nature of restitution u/s 144 of the Code of Civil Procedure. The relief which the court gives to the debtor is, in my opinion, more akin to relief by way of execution of the award so far as the debtor is concerned. In computing the period of limitation, even if we are to apply Article 181, the terminus a quo in the third column in that Article, (namely, when the right to apply accrues), should be determined by way of analogy to the date which is stated in the third column of Article 182, viz., the date of the final appeal. If this principle is applied, the right to apply in the third column of Article 181, conceding that the Article applies, would mean, in cases like the present, the date of the final adjudication of the proceedings u/s 37A resulting in an award. An award, u/s 37A, is appealable to the appellate officer u/s 40 and becomes final subject to the provisions of Section 40A, on the passing of the order by the Appellate Officer tinder Section 40(5) of the Act, where, as in the present case, an application in revision u/s 40A is filed, the award becomes final and conclusive when an order is made by the District Judge disposing of the application in revision u/s 40A of the Bengal Agricultural Debtors Act. This view is supported by the principles underlying two decisions in the cases of Sailen Chand Dutt v. Promode Kumar Roy (1948) 53 C.W.N. 631 and Midnapore Zemindary Co. Ltd. Vs. Naba Kumar Singh Dudhoria and Others, . The presentation of the award, in the present case, was accordingly made in proper time and the bar of limitation did not operate to prevent the debtors from getting relief u/s 37A(5).

The result, therefore, is that the decision of Roxburgh J, must be affirmed and this appeal dismissed with costs, hearing-fee being assessed at two gold mohurs.

Lahiri J.

I agree.