JUDGMENT
Gajendragadkar, J.
(1) The snort point which arises in this civil revision application is Whether the petitioners are entitled to have their debts adjusted in respect of the opponent. An application was made by the petitioners’ father on 15-10-1945, for the adjustment of his debts due from him to three creditors. Amongst them opponent I was the first creditor. This application was made to the Board, and at the time when it was made, it would have been governed by the provisions of Bombay Act 28 of 1939. However, the application was not disposed of until 12-4-1950. Meanwhile, the present Act 28 of 1947 had come into operation on 27-5-1947. Before the learned trial Judge, two contentions were raised by the creditor against the petitioners’ claim for adjustment it was urged that the application was incompetent under Section 45, Sub-section (2), of the earlier Act of 1939. It was also contended that the application was barred under the provisions of Section 25, Sub-section (1), of the new Act of 1947. The learned trial Judge upheld the latter plea. In his opinion, the transaction now impeached had been finally adjudged to be a transaction other than a mortgage and so the application was barred under Section 25(1) of the new Act. When the matter went in appeal, the lower appellate Court disagreed with this view. It held that in the earlier litigation no adjudication had really been made as to the nature of the transaction and so the provisions of Section 25(1) of the new Act could not be invoked. It, however, upheld the other plea and came to the conclusion that since the transaction was prior to 1927, the application Itself was incompetent under Section 45, Sub-section(2), of the earlier Act of 1939. I should have stated that the transaction between the petitioners and the opponent was an ostensible sale and it had taken place on 13-7-1899. Since the petitioners’ claim for adjustment of the debts has been rejected by the learned District Judge, they have come to this Court in the present revisional application.
(2) The principal point which arises on this application had in the meanwhile been decided by a Division Bench of this Court in — ‘Vish-wanath Madhadev v. Krishnaji’, AIR 1949 Bom 390 (A); it was held by the learned Chief Justice and myself that the effect of the provisions of Section 56 of the new Act was to make all the provisions of the new Act apppllcable to proceedings which nad been filed under the old Act and which were pending at the time when the new Act came into force. It is true that in this case we were not dealing with proviso (a) directly, but our decision was put on grounds which apply to all the provisos alike. In the ordinary course, the petitioners would have succeeded before the learned Chief Justice merely by referring to this decision of the Division Bench. But on behalf of the opponent the attention of the learned Chief Justice was invited to a contrary view which he had himself- expressed sitting as a single Judge in –‘Bapu Babu Naik v. Daji Keru Mandare’, Civil Revn. Appln. No. 459 of 1952 (Bom) (B). That is why the learned Chief Justice has referred this matter to a Division Bench and it has now become necessary for us to examine the question afresh.
(3) Section 56, Sub-section (2) of the new Act, repealed the earlier Act of 1939 and it provided that all the Boards established under Section 4 of the repealed Act shall be dissolved. This Sub-section was followed by an important proviso which dealt with matters which were governed by the old Act until the commencement of the new one. it is proviso (a) with which we are directly concerned in the present revisionsl application. When the Act was passed, this proviso read thus: "Provided that all proceedings pending before any such Board shall be continued before the Court if an application under Section 4 of this Act had been made to the Court." (4) By Bombay Act 70 of 1948, Section 24, Sub-section (2), this proviso was subsequently amended and in its amended form it reads thus : "All proceedings pending before any such Board at the date when this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under Section 4 had been made to the Court in respect therefor." In the present revisional application, we are really concerned with this amended proviso.
(5) Before proceeding to deal with the merits of the controversy between the parties, it would be convenient to set out the rival contentions. On behalf of the petitioners, Mr. Tarkunde contends that the effect of this proviso is to make all the provisions of the new Act applicable to proceedings which were pending at the time when the new Act came into force. Mr. Tar-kunde’s argument is that, in applying the provisions of the new Act to the pending proceedings, no distinction can be made between provisions that relate to procedure and those that affect substantive rights. On the other hand, Mr. Chitale contends that the effect of this proviso is merely to make it clear that the procedure which should govern the decision of the pending proceedings is the procedure laid down by this Act. Mr. Chitale’s case is that if the new Act has conferred some special and additional rights on the debtors which were not available to them under the earlier Act of 1939, it is not the intention of the Legislature in enacting this proviso to confer these new additional rights on the debtors whose applications would normally have been governed by the provisions of the old Act. It is common ground that if Section 24 of the new Act applies, the plea that the tiansaction in question is prior to 1-1-1927, would not. prevail; on the other hand, if Section 45(2) of the old Act applies, the said plea would be fatal to the petitioners’ claim for adjustment.
(6) The scheme of the proviso appears to me to be fairly clear. This proviso deals with all the matters that would have been governed by the earlier Act of 1939 if this new Act had not come into force and had not repealed the earlier Act. Sub-clause (b) of the proviso deals with the awards which had already been made, confirmed or modified under the repealed Act and it provides that the same should be deemed to have been made, confirmed or modified under this Act as if this Act was in force at the material date. Similarly, Sub-clause, (c) and (d) deal with the appeals arising from decisions made under the earlier Act. Sub-clause (d) deals with appeals which would have been filed under the repealed Act against any decision, order or award, but which could not be filed only by reason of the fact that the said Act was repealed, and it goes on to provide that such appeals shall, when filed before a competent Court, be deemed to have been filed under the provisions of this Act and shall be disposed of accordingly, in other words, this clause deals with appeals which had not been filed under the old Act and which could not have been filed by reason of the repeal of the old Act, and in respect of such appeals it lays down that tltese appeals should be filed and shall be disposed of under the provisions of the new Act. Sub-clause (c) deals with appeals which had already been filed under the old Act and it lays down that they shall be continued and disposed of as if they had been filed under the provisions of the new Act. It would thus be noticed that the object underlying the provisions of Sub-clause, (b), (c) and (d) is to make the provisions of the new Act applicable to matters covered by those Sub-clauses in their entirety. Sub-clause (a) deals with the proceedings which, were pending at the trial stage and which had not been decided before the new Act came into force; and in respect of these proceedings this clause lays down that they shall be continued and diposed of by the Court under this Act as if an application under Section 4 had been made to the Court in respect therefore.
The word ‘Court’ has been defined by Section 2, Sub-section (3), of this Act, and so there would be no difficulty in interpreting the word ‘Court’ occurring in this Sub-clause. It would necessarily mean the Court administering the provisions of the new Act. If an application which was made before the new Act came into force has to be continued and disposed of by the Court administering the new Act, prima facie it would appear that the new Act would govern the disposal of the pending proceedings. But this intention is emphasised by the use of the clause ‘under this Act’. In my opinion, this clause governs the expression ‘shall be continued and disposed of and does not go with the words ‘the Court’. In other words, as I read this clause, it means that the Court established under the new Act shall continue and dispose of pending proceedings under this Act. That can only mean that in disposing of the pending proceedings, the Court shall apply the provisions of the new Act. Mr. Chitale contends that the clause ‘under this Act’ should govern the words ‘the Court’. I do not think that this construction is reasonable. Having defined the expression ‘the Court’ by Section 2, Sub-section (3), wherever the particular Court thus defined is intended to be referred to by this Act, the expression used is ‘the Court’ and not ‘the Court under this Act’. Sections 4, 14, 17 and 19 afford an illustration of the use of the words ‘the Court’. In fact, this clause itself uses the words ‘the Court’ in the second part of the clause where it provides that the pending’ proceedings shall be disposed of as if an application under Section 4 had been made to ‘the Court’ in respect therefor. In this latter part of this clause, the words used are ‘the Court’. Therefore, in my opinion, the clause ‘under this Act’, cannot go with the words ‘the Court’.
(7) There is another clear indication provided by this clause itself which shows that all the provisions of the new Act must be applied to pending proceedings and that is afforded by the second part of this clause where it is laid down that the pending proceedings shall be disposed of “as if an application under Section 4 had been made to the Court”. In other words, when a pending proceeding is taken on file by the Court administering this Act with a view to dispose of the said pending proceeding, the Court will deal with this proceeding as if an application had been made under Section 4 of this Act. Now, if further proceedings are continued on the assumption that an application had been made by the debtor under Section 4 of the Act, there would be no justification for confining the application of only procedural provisions of the new Act to such a proceeding. This position becomes abundantly clear if we compare the words used in Section 19, Sub-clause (3), of this Act. Section 19 refers to pending suite, appeals and other proceedings and it lays down for the transfer of these matters to the Court administering the Bombay Agricultural Debtors Relief Act. Sub-clause (3) of Section 19 provides that when any such matter is transferred to the Court under Sub-section (1) of Section 19 or Sub-section (2) of Section 19, the Court shall proceed as if an application under Section 4 had been made to it. It is not suggested and indeed it cannot be suggested that when a suit or other proceeding is transferred under the provisions of Sub-section (1) and (2) of Section 19 to the Court under the Bombay Agricultural Debtors Relief Act, it is only the procedural provisions of the Act that are intended to be applied. It is obvious that when these matters are transferred to the Bombay Agricultural Debtors Relief Act Court, they have to be dealt with on the tooting that an application had been made by the debtor and the adjustment of the debtor’s debts has to be made by applying all the provisions of the new Act. Indeed it may be mentioned that Mr. Chitale did not seriously dispute this position. Now, if the use of the words ‘as if an application had been made to the Court’ clearly leads to one result under Section 19, Sub-section (3), it would be difficult to hold that the use of the same words would lead to another result in proviso (a) to Section 56(2).
(8) Mr. Chitale, however, contends that this proviso is inapplicable to the present application made by the petitioners, because the application itself was incompetent when it was made. In other words, Mr. Chitale’s contention is that the ponding proceedings which fall within the protection of proviso (a) to Section 56, Sub-section (2), must be valid pending proceedings. If the proceeding which was pending under the old Act was invalid, it cannot attract this proviso at all. The same argument can be put in a different form. If the debtor had only certain benefits conferred upon him by the provisions of the earlier Act, it could not have been intended that on the same debtor additional and newer benefits should be conferred merely by reason of the accident that his application had not been disposed ol before the new Act came into force. We are not prepared to accept this argument. It is well-known that the intention of the Legislature should be gathered from the words used by the Legislature, and in our opinion the words used in the proviso in question are clear and unambiguous. Besides, we see no justification for con-iining the application of proviso (a) only to valid proceedings. The proviso refers to all proceedings pending, and giving these words their clear grammatical meaning, this clause must cover all proceedings whatever would have been the final result in those proceedings under the earlier Act. Besides, it seems to me that there are very goods reasons why the Legislature may have intended to confer upon debtors, whose applications for adjustment of debts were pending, the additional benefits provided by the new Act. It may be that the Legislature realised that, under the earlier Act, some benefits which were intended to be conferred were defeated by the defective wording in some of the material sections. In this connection, Mr. Tarkunde has invited our attention to the provisions of Section 23 of the old Act. It would have been possible to take the view under the provisions of this section that, if a creditor claimed more than the specified amount from the debtor, the debtor’s case would not fall within the scope of this Act. The present Section 17 has made a material change in that behalf. It puts the limit to the amount of indebtedness no doubt But it provides that the amount must be found to be due from the debtor to the creditor. In other words, it is only after the Court adjudicates upon the extent of the debtor’s indebtedness that in cases where the debt exceeds the statutory amount the debtor would fall outside the scope of the Act. Mr. Tarkunde has also referred us to the provisions of Section 45, Sub-section 2(iii), and he has asked us to compare them with the provisions of Section 25, Sub-section (2), of the new Act. The change made in the latter section is also intended to give more atfective benefit to the debtor. It may well be that the Legislature took the view that they could not touch the cases of debtors which had bean finally disposed of under the old Act. They were, however, disposed to bring within the protection of this new Act all pending cases and so they have dealt with all the pending cases in four categories under the proviso to Section 56, Sub-section (2). It seems to us that the words used in the proviso are not capable of the construction for which Mr. Chitale contends. If the intention of the Legislature was merely to provide that the procedure prescribed by the new Act should be applied in dealing with the proceedings pending under the old Act, it was hardly necessary to have laid down these detailed provisions in the proviso. Change of procedure would normally apply to pending cases. Legislature wanted to provide that even the substantive provisions of the new Act should be applied to pending proceedings and that, in my opinion, is the only justification for the detailed, provisions contained in this proviso.
(9) Incidentally, I must point out at this stage that the amendment made by the amending Act 70 of 1948 in the original proviso emphasises the intention of the Legislature more clearly than before, because by the amendment the clause ‘under this Act’ has been newly introduced. In my opinion, therefore, the view which was expressed in — ‘Vishwanath Mahadev v. Krishnaji’, (A), is fully Justified by the words used in the proviso and that the contrary opinion expressed by the learned Chief Justice in –‘Bapu Babu Naik v. Baji Keru Mandare’, (B) is, with very great respect, not in consonance with those words. Therefore, we must hold that the learned District Judge was wrong in applying the provisions of Section 45, Sub-section (2), to the application made by the petitioners. The petitioners are entitled to invoke all the provisions of the new Act and their application for adjust ment of debts cannot be thrown out merely on the ground that the transaction was prior to 1927. As I have already mentioned, it is common ground that under the provisions of Section 24 of the new Act no such limitation of time has bsen imposed.
(10) Mr. Chitale has then fallen back upon the finding of the trial Court in support of the order made by the learned District Judge. He contends that if the provisions of the new Act are going to be applied to the present application, the application must be held to be incompetent because the transfer in question has been finally adjudged to be other than a mortgage by a decree of a Court of competent jurisdiction. In dealing with this point, some more facts must be mentioned. The original sale deed dated 13-7-1899, was intended to be executed by Sham Gulal and Govind Narayan. It appears that Sham Gulal signed the document, but Govind Narayan did not. Therefore, tile purchaser had to bring suit No. 285 of 1900 for specific performance of the agreement. This suit ended in a compromise and Govind Narayan agreed to put his signature to the document. The signature was put to the document, the document was eventually registered, and possession of the property delivered to the ostensible purchaser. In suit No. 224 of 1911, Sham Gulal and Govind Narayan claimed that the transaction was a mortgage and they asked for appropriate reliefs under the provisions of the Dekkhan Agriculturists’ Belief Act. Their suit was dismissed on the ground that the Dekkhan Agriculturists’ Relief Act was not applicable at the time of the transaction and so it could not be invoked by them. It would appear tliat a finding was also made that the compromise decree passed in suit No. 235 of 1900 operated as ‘res judicata’. Mr. Chitale says that the effect of these two decisions is that the transaction of 1899 has been adjudged to be other than a mortgage. We are not prepared to accept this contention. In our opinion, Section 25, Sub-section (1), can be invoked only when there is an adjudication which should be final and which determines the character of the transaction in question. In the present case, in the first compromise decree oi 1900, there was no occasion for deciding the character of the transaction at all and the compromise decree which was passed in the suit for specific performance merely compelled Govind Narayan to put his signature to the document. The nature of the transaction evidenced by the document was not in dispute and there was no occasion either for the parties to settle their disputes about the nature of the transaction or for the Court to decide upon it. In the second litigation again, the suit was dismissed on the ground that the Dekkhan Act was not applicable. If the Dekkhan Act was inapplicable, it was not open to the vendors to allege the oral agreement of reconveyance or to contend otherwise that the transaction which was ostensibly a sale was in reality a mortgage. The decision on the first issue that the suit was incompetent because the Dekkhan Act was not applicable was decisive of the litigation. The Court had not reached a stage in that litigation where it was called upon to consider the character of the transaction itself. Mr. Chitale argues that if the suit was dismissed, its result must be taken to be that the transaction was held to be other than a mortgage. We do not think that even if such a far-fetched result is possible to be reached that it amounts to a final adjudication of the nature of the transaction with-in the meaning of Section 25, Sub-section (1). Under the Code of Civil Procedure, if the suit brought by a debtor is dismissed for default or is withdrawn without liberty to file a fresh suit, it may preclude the plaintiff from bringing a similar suit under the same cause of action. Under the provisions of Section 11, Civil P. C., if a suit by a debtor is decided on some points and it would have been open to the debtor to make a plea as to the character of the transaction which had not been made in appropriate cases, the plea of constructive ‘res judicata’ could be pleaded against him. But these cases cannot, in our opinion, be brought within the scope of Section 25, ‘Sub-section (1). Bombay Agricultural Debtors Relief Act. This Sub-section seems to exclude from the operation of the Act only such transactions which have been adjudged to be other than a mortgage. It may be that a compromise decree may adjudge the transaction to be other than a . mortgage in clear terms, and in that case the mere fact that the Court did not decide the character of the transaction on me merits may not help the debtor to escape the application of Section 25, Sub-section (1). In the present case, however, there has been no adjudication about the nature of the transaction at all either in 1900 or in 1911, and as I have pointed out, there was no occasion to deal with this Question at all.
(11) In this connection, our attention has been invited to three unreported judgments of the learned Chief Justice. In –‘Tukaram Shivram v. Laxman Rarnchandra’, Civil Revn. Appln. No. 470 of 1950 (C), the learned Chief Justice took the view that it does not make any difference if the decree which had adjudicated upon the nature of the transaction is a consent decree, because he has pointed out, and with respect rightly, that it makes no material difference for the application of Section 25, Sub-section (1), whether the character of the transaction is adjudicated by the decree ‘in invitum’ or by consent. In –‘Gangaram Lilachand v. Balku Sambhu’, Civil Revn. Appln. No. 38 of 1951 (D), the learned Chief Justice was dealing with a compromise decree which itself recognised that the transaction iri question was in the nature of a mortgage. Naturally he did not accept the contention of the cerditor that the compromise decree amounted to an adjudication such as is contemplated by Section 25. Sub-section CD. It is true that in rejecting the creditor’s plea, the learned Chief Justice has observed that the scheme of the Act is
“that if a competent Court on the evidence comes to the conclusion that a transfer is a sale and not a mortgage, then the same question should not be litigated in the Debt Adjustment Court.”
With respect, these observations must be read in the light of the facts which had been found by the Courts below and to which the learned Chief Justice himself has referred in the earlier portion of his judgment. We do not read these observations as laying down that before the provisions of Section 25C1) can be invoked by a creditor, it must always be shown that the Court itself has adjudicated upon the character of the transaction on the evidence taken by the Court. In our opinion, the view which the learned Chief Justice has himself taken in .-‘Tukaram Shivram Lohar’s’ case (C), is more in consonance with the words used in Section 25(1). The third decision to which our attention has been invited is the judgment of the learned Chief Justice in –‘Motilal Jasraj Marwadi v. Gopal Bala Patil’, Civil Revn Appln. No. 1139 of 1951 (E). In this case, the learned Chief Justice was dealing with facts very similar to the facts before us. In the earlier litigation, the suit by the debtor has been held to be incompetent. It was argued before the learned Chief Justice that the dismissal of the suit under those circumstances created a bar against the application of the debtor under Section 25(1). This contention was rejected, and with respect we think rightly. Therefore, in our opinion, on the facts of this case, it is impossible to hold that the transfer in question has been finally adjudged to be other than a mortgage by a decree of a Court of competent jurisdiction. If that be so, the plea that the application is barred under Section 25(1) must fail.
Vyas, J.
(12) A short question which has arisen for our consideration in this Civil Revision Application is whether an application for the adjustment of his debts which was made by a debtor under Section 17(1), Bombay Agricultural Debtors Relief Act 28 of 1939 and which was pending before the Board when that Act was repealed and which, upon the coming into force of the Bombay Agricultural Debtors Relief Act 28 of 1947 was transferred to a Court under the latter Act, is to be governed by the provisions of Section 45 of the old Act of 1939 or by the provisions of Section 24 of the new Act of 1947. It is clear that if the provisions of Section 45 of the old Act are to appiy, the applicant-debtor must fail in his application for the adjustment of bis debts, as the transaction whose nature is sought to be determined was entered into on 13-7-1899, i.e. before 1-1-1927 (see Section 45, Sub-section (2)(i) of the old Act). On the other hand, if the application is to be governed by the provisions of Section 24 of the new Act, an enquiry into the nature of the transaction can be made irrespective of when it was entered into. This point, namely whether Section 45 of the old Act or Section 24 of the new Act must govern this application for the adjustment of the debt, was not raised in the trial Court, but it was raised in the appeal Court; and in appeal, the learned District Judge held that Section 45 of the old Act would govern this application and that under Sub-section (2) of that section the application must fail as the transaction was entered into before 1-1-1927. in the course of his judgment, the learned District Judge observed :
"The application however was made under Section 45 of the old Act. Section 24 relates to new applications being made under Section 4 of the Act of 1947. This section (meaning Section 24 of the new Act), is in terms prospective. There is nothing in Section 56 (meaning Section 56 of the new Act) which suggests that Section 24 should be given a retrospective effect." (13) This view is challenged by the original debtors in .this revisional application.
(14) The facts which have given rise to this revisional application are briefly these: A Board under B. A. D. B. Act of 1939 was established in Sahada Taluka in the District of West Khandesh on 1-5-1945. On 15-10-1945, one Batan Govind Patil made an application under Section 17(1) of the Act of 1939 against 3 creditors of his for the adjustment of his debts due to them. In this revisional application, we are concerned with creditor No. 1 only (opponent) and the debt to be considered is a debt in respect of a transaction (sale-deed) D/-13-7-1899. It maybe noted that pending these proceedings Batan Govind died and his sons Hiraman and Devidas have been brought, on record as his heirs. It would appear that Ratan’s father Govind Harayan used to borrow monies from the creditor. He had a khata in the creditor’s shop. His four brothers also used to borrow ‘monies similarly from the creditor upon their separate khatas with him. Upon these 5 khatas, the creditor’s vahiwatdar was making a claim of Bs. 8,000. There was a compromise entered Into between the 5 brothers & the creditor and it was settled that the 5 brothers should pay Rs. 2,500 to the creditor in full satisfaction of his claim; or in the alternative two sale-deeds were to be passed in favour of the creditor. One sale deed for Rs. 1,000 was to bo in respect of two houses and a land and the other sale deed for Rs. 1,500 was to be in regard to 4 lands situated at Ubhad. The applicants contend that the transaction of sale of two houses and a land was to be an out & out sale & that the other transaction was to be treated as a mortgage. The applicants say that St was in these circumstances that the sale-deed dated 13-7-1899, was written. In that document, there was no condition of reconveyance of the lands to Govind Narayan. So Govind Narayan refused to sign the document. That led to a suit by the creditor which was suit No. 285 of 1900 against Govind Narayan. There was a compromise in that suit and it was settled (1) that Govind Narayan should sign the sale-deed and (2) that the creditor should be put in possession of the lands which were the subject-matter of the sale-deed dated 13-7-1899. The applicants-debtors, contend that the creditor had assured Govind Narayan that the transaction would be considered, as a mortgage, notwithstanding the form of the document. Subsequently, the creditor, it would appear, was unwilling to treat the transaction as a mortgage, so in 1911 Govind Narayan and another filed suit No. 224 of that year under the Dekkhan Agriculturists’ Relief Act against the creditor for a declaration that the sale-deed, dated 13-7-1899, was in the nature of a mortgage, and for accounts, redemption, etc. The-trial Court took the view that as the transaction, had been entered into before the Dekkhan Agriculturists’ Relief Act had been made applicable to this District, the plaintiff of that suit No. 224 of 1911 could not be called an agriculturist, that therefore the suit was incompetent and accordingly dismissed the suit. The plaintiff’s (Govind’s) appeal was also dismissed by the appellate Court. On 1-5-1945, a Board under the Bombay Agricultural Debtors Relief Act of 1939 was established in Shahada Taluka, and on 15-10-1945, Govind’s son Ratan made an application under Section 17, Sub-section (1), of the Act of 1939, to that Board for the adjustment of his debts. By the Bombay Agricultural Debtors Relief Act of 1947, the Act of 1939 was repealed and the-Boards set up under the said old Act were dissolved. Accordingly, Ratan’s application was transferred to the Court set up under the new Act, namely, the Court of the Joint Civil Judge, Nandurbar, sitting at Shahada, and that Court-held that the application was barred by Section 25(1) of the Act of 1947 in view of the decision in suit No. 224 of 1911. In appeal, the learned District Judge held that the application was not barred by Section 25(1) of Act 28 of 1917, but held further that the application was governed by Section 45 of the Act of 1939 and not by Section 24 of the Act of 1947 and was barred by Sub-section (3) of Section 45 of the Act of 1939. Consistently with that view, the learned District Judge dismissed the appeal of the applicants-debtors and hence this revisional application by the debtors. Normally the learned Chief Justice would have allowed this revisional application in view of the decision of the-Division Bench of this Court consisting of himself and my learned brother iji the case of ‘AIR 1949 Bom 390 (A)’ in which it was held that the effect of the provisos to Section 56(2) of the Act of 1947 was to make all the provisions of that Act. — substantive as well as procedural — retrospective in respect of all proceedings and all appeals which were filed under the old Act of 1939 and which were pending when the said old Act was repealed and the new Act of 1947 came into force. But the learned Chief Justice’s attention was invited to his decision, sitting as a single Judge in Civil Revn Appln No. 459 of 1950 (B) in which a contrary view was taken by him. That is how his Lordship has referred this revisional application to a Division Bench.
(15) Now, on the point whether the application of these debtors which was filed under the Act of 1939 and was pending before the Board when that Act was repealed and was transferred to the Court set up under the Act of 1947 would be governed by Section 45 of the Act of 1939 or by Section 24 of the Act of 1947, the provisions which help us to decide the point are to be found in proviso (a) to Sub-section (2) of Section 56, Bombay Agricultural Debtors Belief Act 28 of 1947. This Sub-section (2) of Section 56 has four provisos. Originally, Section 56, Sub-section (2), had three provisos and those were :
"(1) Provided that all proceedings pending before any such Board shall be continued before the Court as if an application under Section 4 of this Act had been made to the Court; (2) Provided further that all appeals pending before any Court under the repealed Act shall be continued and disposed of as if they were appeals under this Act : and (3) Provided also that ail appeals against decision, orders or awards of any Board established under the repealed Act which but for this Act would have lain shall when presented be deemed to be appeals from the decisions, orders or awards passed by a Court, under this Act and shall be disposed of accordingly. There was an amendment to the Act of 1947 by Act 70 of 1948 under which amending Act the present four provisos to Sub-section (2) of Section 56 were enacted. The present four provisos to Sub-section (2) of Section 56 are : "(a) all proceedings pending before any! such Board at the date wnen this Act comes into force shall be continued and disposed of by the Court under this Act as if an application under section 4 had been made to the Court in respect therefor; (b) all awards made, confirmed or modified under the repealed Act shall be deemed to have been made, confirmed or modified under this Act as if this Act was in force at the date when the said awards were made, confirmed or modified, as the case may be; (c) all appeals pending before any Court under the repealed Act against the decision, order or award of such Board shall be continued and. disposed of as if the said appeals were filed under the provisions of this Act; and (d) all appeals which could have been filed under the repealed Act against any decision, order or award of such Board but which could not be filed only by reason of the fact that the said Act was repealed by this Act shall when filed before a competent court be deemed to have been filed under the provisions of this Act and shall be disposed of accordingly." As I have stated above, the proviso with which we are directly concerned in this revisional application is proviso (a).
(16) Now, Mr. Tarkimde for the applicants-debtors contends that these provisos to Section 56, Sub-section (2), give retrospective effect to all the provisions of the Act of 1947 –substantive provisions and the procedural provisions — and that therefore although the application of these debtors was not tenable under Section 45, Sub-section (2), of the Act of 1939, it would be Section 24 of the Act of 1947 which would retrospectively govern and the applicants would, therefore, be entitled to have an enquiry made into the nature of the transaction dated 13-7-1899. On the other hand, Mr. Chitale for the opponent-creditor submits that the provisos to Section 56. Sub-section (2), of the Act of 1947 make only the procedural provisions of the new Act of 1947 retrospective, that the substantive provisions of law contained in the Act of 1947 are not given a retrospective effect by these provisos, that the provisions of Section 24 of the Act of 1947 are substantive provisions of law, that therefore the said provisions would not apply retrospectively to this application, but that the application must be governed by Section 45 of the Act of 1939.
(17) in our view, Mr. Tarkunde’s contention-must prevail. The language used in all the provisos–we are more particularly concerned here with proviso (a) –is clear and explicit and leaves no doubt in our minds that what the Legislature has intended by enacting for instance provisos (a) and (c) is that all applications pending before the Boards, which were constituted under the Act of 1939, at the date when the Act of 1917 came into force and ail appeals pending before the Courts under the repealed Act of 193a against the decisions, orders and awards of such. Boards shall be continued and disposed of as if they were applications and appeals made and filed under me Act of 1947. Proviso (b) deals. with all awards made, confirmed or modified under the repealed Act and lays down that such awards shall be deemed to have been made, confirmed or modified under the Act of 1947 as if the Act of 1947 was in force at the date when those awards were made, confirmed or modified. Then there is proviso (d) which deals with all appeals which could have been filed under the repealed Act against any decision, order or award of the Board established under the Act of 1939, but which could not be filed only by reason of the fact that the Act of 1939 was repealed; and lays down that such appeals shall, when filed before a competent Court, that is to say the Court set up under the Act of 1947, be deemed to have been filed under the provisions of the. Act of 1947 and shall be disposed of accordingly. In provisos (a), (b) and (c), the words ‘as if occur and in proviso (d> the words ‘shall be deemed to have been made under the provisions of this Act’ occur. Furthermore, and this is quite significant, the Legislature has deliberately used. the words ‘under this Act’ after the words ‘by the Court’ in proviso (a). The abovementionedj language of the provisos (a), (b), (c) and (d)! clearly shows that the provisos give a retrospec-j tive effect to all the provisions of the Act of 1947! and not merely to the procedural provisions thereof. In our view, the words ‘under this Act’ occurring after the word ‘Court’ in proviso (a> are to be read with the words ‘shall be continued! and disposed of. In other words, proviso (a) would appropriately read thus;
“All proceedings pending before any such Board. at the date when this Act comes into force shall be continued and disposed of under this-Act by the Court as if an application under Section 4 had been made to the Court in (respect therefor.”
We are fortified in this interpretation of the words ‘under this Act’ for the simple reason, that the term ‘Court’ is defined in Section 2, Sub-section (3), of the Act of 1947, and therefore if the words ‘under this Act’ were to be read with the word. ‘Court’, and not with the words “shall be continued and disposed of,” they would be redundant and the Legislature could hardly be charged with having used superfluous words. Moreover, the word ‘Court’ is used in several other sections of the Act of 1947 and in none of those sections do we find the use of the words ‘under this Act’ after the word ‘Court’. For instance, the word ‘Court’ is used in Sections 4, 14, 17 and 19 (it is hardly necessary to reproduce entirely the language of these sections in this context) and in none of these cases do ws find the expression ‘under this Act’ following the word ‘Court’. We have, therefore, no doubt that the Legislature had a special purpose in using the words ‘under this Act’ after the word ‘Court’ in proviso (a), and that purpose, in our view, was to enact in unmistakable manner that all the proceedings pending before any Board at the date when the Act of 1947 came into force shall be continued and disposed of under the Act of 1947 as if an application under Section 4 had been made to the Court in respect therefor. in our opinion, therefore, as I have already stated above, the words ‘under this Act’ in proviso (a) go with the words ‘shall be continued and disposed of and the natural meaning of the expression ‘shall be continued and disposed of under this Act’ is that all the provisions, substantive and pro-cedural, of the Act of 1947 are to be given a retrospective effect in the disposal of all pro-ceedings which were filed under the old Act and pending before the Board at the time of the repeal of the old Act and were transferred for disposal to the Court set up under the new Act of 1947.
(18) Not only has the Legislature used the words ‘shall be continued and disposed of ….. under this Act’, but it has also used the words ‘as if an application under Section 4 bad been made to the Court in respect therefor’. Now, there is no doubt as to the meaning of the words ‘as if an application under Section 4 had been made to the Court in respect therefor’. The words ‘as if an application under Section 4 had been made to it’ occur in Section 19, Sub-section (3), of the Act of 1947. Now, Section 19, Sub-sections (1) and (2), refer to suits, appeals, applications for execution and proceedings which were filed under the old Act of 1939 and were pending when that Act was repealed and the new Act of 1947 carne into force. Sub-sections (1) and (2) of Section 19 lay down that such suits, appeals, applications and proceedings shall he transferred to the Court set up under the new Act & Sub-section (3) enacts how the said Court shall proceed to deal with them. It says:
“When any suit, appeal, application or proceeding is transferred to the Court under Sub-section (1) or Sub-section (2), the Court shall proceed as if an application under Section (4) had been made to it.”
Now, it would be difficult to hold that what the Legislature intended while framing Sub-section (3) of Section 19 01 the Act of 1947 was that the provisions of the now Act were to apply only partially, that is that the procedural part only of the new Act was to apply and that the substantive law which was to govern such suits, appeals, applications & proceedings was the law contained in the repealed Act of 1939. Quite conceivably, in many of such suits, appeals, applications or proceedings, the transactions concerned may be transactions prior to 1-1-1927, and if we are to accept Mr. Chitale’s contention that the substantive provisions of the Act of 1947 are not made retrospective by the provisos to Sub-section (2) of Section 58 no enquiry could be made by the Court into the nature of those transactions, whereas the transactions entered into after 1-1-1927, could be enquired into by the same Court although they also might be the subject-matter of the suits, appeals, applications and proceedings filed under the old Act and transferred to the Court established under the new Act. Now, such could not have been the intention of the Legislature, and this is clear from the words ‘as if an application unfler Section 4 had been made to it’ in Section 19, Sub-section (3), of the Act of 1917. Section 4 of the Act of 1947 says that an application made under it shall contain the amount and particulars of all debts, i.e. debts irrespective of the year to which they relate, i.e. debits prior to or subsequent to 1-1-1927. In our view, the use of the words ‘as if an application junder Section 4 had been made to it in Section 13, Sub-section (3), shows that the suits, appeals, applications and proceedings referred to therein are to be dis-posed of under the provisions — substantive and procedural- of the Act of 1947, irrespective of the year to which the debts relate. When an application is normally made under Section 4 of the new Act of 1947 for the adjustment of a debt naturally all the law contained in the new Act governs the disposal of the said application, & there would be no justification for supposing that when the Legislature used the words ‘as if an application under Section 4 had been made to it’ in Section 10, Sub-section (3), they used them with a mental reservation that in the case of applications initially made under Section 17 (1) of the Act of 1939 and transferred to the Court set up under the Act of 1947, only the procedural part of the Act of 1947 was to apply. It may be that as a matter of coincidence, an application which was untenable under the Act of 1939 becomes tenable under the Act of 1947; but such a position often becomes inevitable when legislative changes take place and need not deter us from putting a natural construction on plain words, a construction in keeping with the intention of the Legislature which, was to enact the new Act for the better benefit of the community of agricultural debtors.
In our view the Legislature must have anticipated, but not minded, the result which must follow when, the prior legislation” on the same subject is liberalised, namely that a certain section of the agricultural debtors who would have failed under the Act of 1939 would succeed under the new Act by reason of the accident that their applications happened to be pending when the Act of 1939 was repealed. Of course, if those applications had been disposed of before the new Act came into force, nothing could have been done. But if they were pending, we do not think, that the Legislature intended that the Court set up under the new Act was to apply one substantive law to one set of applications (those filed under the old Act and pending when that Act was repealed) and different substantive law to another set of them (those filed under the new Act). Such a position would have been undoubtedly cumbrous to a certain extent and we do not think that the Legislature intended to introduce unnecessary complexity in the machinery of judicial administration by enacting Section 19, Sub-section (3), of the Act of 1947. Clearly, therefore, the words ‘as if an application under Section 4 had been made to It’ occurring in Section 19, Sub-section (3), mean that all the provisions of the new Act, substantive and procedural, are to apply to the disposal of suite, appeals, applications and proceedings filed under the old Act of 1939 and transferred to the Court set up under the new Act of 1947 under Section 19, Sub-sections (1) and (2), of the new Act. A recognised canon of construction is that the same expression ‘as if an application under Section 4 had been made to it (i.e., to the Court)’ must have the same meaning wherever it occurs in the same Act. Now, this same expression which occurs in Section 19, Sub-section (3), also occurs in proviso (a) to Sub-section (2) of Section 56, and therefore we have come to the conclusion that the words ‘continued and disposed of ..under this Act as if an application under Section 4 had been made to the Court in respect therefor occurring in proviso (a) to Sub-section (2) of Section 56 clearly show that the intention of the Legislature in enacting proviso (a) was to make all provisions of the Act of 1947, substantive and procedural, retrospective in effect in respect of all proceedings which were filed under the old Act and were pending before the Board at the date of the repeal of that Act & were transferred to the Court established under the new Act for disposal.
(19) in this context, let us now turn to Section 26 of the Act of 1939. It says:
“No application under Section 17 or Section 23 shall be entertained by the Board on behalf of or in respect of any debtor, unless the total amount of debts claimed as being due from him on 1-1-1939 is not more than Rs. 15,000.”
Clearly thus, under the old Act, it was possible that if a creditor merely alleged that the debt due to him exceeded the amount of Rs. 15,000, the application of the debtor was liable to be defeated. But the scheme of the Act of 1947 on this point is materially different and in our view it is deliberately different, because the framers of the new Act appear to have intended to give larger benefit to all” agricultural debtors-litigants, not only those who might apply under the new Act but also those who had applied under the old Act but whose applications by chance had come to be dealt with under the new Act. in this connection, let us also turn to Sections 11 and 17 of the new Act of 1947. Section 11 laws down :
“No application under Section 4 or 8 shall be entertained by the Court on behalf of or in respect of any debtor, unless the total amount of debts due from him on the date of the application is not more than Rs. 15,000.”
(20) And Section 17 (1) enacts:
“On the date fixed for the hearing of an application made under Section 4, the Court shall decide the following points as preliminary issues:
(a) Whether the person for the adjustment of whose debts the application has been made is a debtor;
(b) Whether the total amount of debts due from such person on the date of the application exceeds Rs. 15,000.”
Under the Act of 1947, therefore, the Court has to decide as a preliminary point whether the amount of debt is more or less than Rs. 15,000, and only if it comes to the conclusion that the debt exceeds Rs. 15,000, the application will be held untenable under the Act, in our view, the Legislature could not have intended, while enacting Act 38 of 1917, to provide for such a differential treatment to debtors-litigants approaching the Court for the adjustment of their debts as that to which they would be subjected if only the procedural provisions of the Act of 1917 were made retrospective by the provisos to Sub-section (2) of Section 56 of the Act of 1947.
(21) Let us next compare Section 45 of the Act of 1939 with Section 25 (2) of the Act of 1947. Under Section 45 of the Act of 1939, complete protection from an enquiry into the nature of a transaction could be claimed by a third party purchaser from the transferee of a debtor, irrespective of whether the third party did or did not have notice of the transaction between the debtor and his transferee. This was obviously a provision detrimental to the debtors and the Legislature removed the defect by enacting Section 25, Sub-section (2), under which the protection could only be claimed by and given to the third party purchasers who had no notice of the dealings between the debtors and their transferees. Here again, we are of the view that the Legislature, while enacting the Act of 1947, could not have intended to subject one section of the litigating agricultural debtors (i.e., those whose applications were made under the Act of 1939, but were pending when that Act was repealed and were therefore transferred to the Court set up under the new Act) to the law which was less advantageous to the debtors and extend the benefit of a more beneficent provision to another section of the debtors who applied under the new Act. It is for these reasons that we have come to the conclusion that the provisos to Section 56, Sub-section (2) of the Act of 1947 have given retrospective effect to all the provisions, substantive and procedural, of the Act of 1947.
(22) Whether the intention of the Legislature was to make the Act of 1947 retrospective in regard to all its provisions or only in respect of its procedural part can also be gathered from a comparison of the provisions of Section by of the Act of 1939 and Section 24 of the Act of 1917. Under Section 45, Sub-section (2), clause (i), enquiry into the nature of transactions entered into before 1-1-1927, was barred. Under Section 24 of the Act of 1947, when a debtor applies under Section 4 of the Act for the ‘adjustment of his debts’, enquiry can be made into the nature of a transaction irrespective of the time when it was entered into. Now, if the procedural part only of the Act of 1947 is to have retrospective effect and if the substantive law contained in the Act of 1947 was to have effect only from the date on which that Act came into force, the result would be that in an application for the adjustment of a debt was filed under the old Act of 1939 wherein the transaction concerned was entered into before 1-1-1927, and if that application was pending when the Act of 1939 was repealed and was accordingly transferred to the Court set up under the Act of 1947, it would necessarily be defeated. On the other hand, if in respect of the same transaction a debtor happened to apply under Section 4 of the Act of 1917, instead of under Section 17, Sub-section (1), of the Act of 1939, for the adjustment of his debt, an enquiry into the nature of the transaction could be made. Now, the Legislature, whose object in amending the prior Act of 1939 was to liberalise the law for the relief of agricultural debtors, could not have intended, while enacting the Act of 1947, to create and maintain such a marked disparity or discrimination in the treatment of debtors asking for the adjustment of their debts. Evidently, the object of the new Act (of 1917) was to confer an additional right upon the debtors, namely, the right to Have an enquiry made into the nature of a transaction which might have been entered into at any time, and a natural construction would be that the intention could not have been to exclude a section of the debtors from that benefit just because in their case the transaction might have been entered into before 1-1-1927. When the Legislature was amending the existing law for the greater relief of the agricultural debtors, they could not have intended that the same transaction, i.e., the transaction prior to 1-1-1927, should be dealt with differently by the Court just because in one case the application was made under the repealed Act (i.e., before 27-5-1947) and in the other case after the new Act came into force (i.e., after 27-5-1917). In our view, while enacting tne Act of 1947, the Legislature seems to hsve realised that the barrier of the date 1-1-1027, was an artificial barrier for the continuance of which there was no justification, and the intention in framing Section 24 of the Act of 1947 was obviously to remove that barrier, and we have no doubt that the advantage of the said removal of barrier must have been intended by the Legislature to be extended even to the applicants who had made their applications under the old Act of 1939.
(23) in the case of ‘AIR 1949 Bom 390 (A)’, a question arose whether the appeal Court set up by Act 28 of 1947 must dispose of the appeals pending before it in accordance with the provisions of law laid down in the new Act, and the division bench of this Court consisting of the learned Chief Justice and my learned brother examined the point whether the provisos as they then stood to Section 56 (2) of the Act 28 of 1947 gave retrospective effect to all the provisions of the new Act, substantive as well as procedural. The first proviso as it then stood to Section 56 (2) of the Act 28 Of 1947 was
“Provided that all proceedings pending before
any such Board shall be continued before the
Court as if an application under Section 4 of this
Act had been, made to the Court.”
and it was not disputed even by the opponents creditor's learned advocate ip that case that it gave retrospective effect to the provisions of Act 28 of 1947 so far as pending applications were concerned. The second proviso as it then stood was "Provided further that all appeals pending before any Court under the repealed Act shall be continued and disposed of as if they were appeals under this Act." and in that connection a contention was advanced for the opponent that it only dealt with the procedural aspect of appeals and not with regard to the substantive law that had got to be applied to appeals which were pending when the new Act was passed. Dealing with that contention, the learned Chief Justice observed (p. 391) :
“…..in our opinion, the language used in the second proviso is fairly clear and explicit and makes this proviso retrospective in its effect. What the Legislature says is that the appeals shall be continued and disposed of as if they were appeals under this Act, which clearly means that all the provisions of this Act shall apply to the appeals which are pending. The appeal Court is asked to treat the appeals as if the new Act was in force and not the old Act, and in disposing of those appeals the appeal Court has to consider the substantive law as well as the procedural law brought into force by Act 28 of 1947. Therefore, in our opinion, the appeal Court set up by Act 23 of 1947 must dispose of the appeals pending before it in accordance with the provisions oi law laid down in the new Act.”
The language of the present proviso (a) to Section 56 (3) with which we have already dealt above is even clearer than that of the original first proviso, and with very great respect, we are of the opinion that the view of my Lord the Chief Justice in ‘Civil Revn. Appln. No. 459 Of 1950 (Bom) (B)’, is not in consonance with that language.
(24) Next Mr. Chitale has raised another point before us and that is that even if all the provisions of Act 28 of 1947 are given retrospective effect, this application of the applicants-debtors must fail as it is barred by the provisions of Section 25 (1) of the new Act by reason of the decision in Govind’s suit No. 224 of 1911. Section 25 (1) lays down :
“Nothing in Section 24 shall apply to any transfer which has been finally adjudged to be a transfer other than a mortgage by a decree of a court of competent jurisdiction or by a Board established under Section 4 of the repealed Act.”
The contention of Mr. Chitale is that there was a final adjudication as to the nature of the transaction dated 13-7-1899, in suit No. 224 of 1911 which was filed by Govinda Narayan and was dismissed by the Court and therefore the present application is barred. The contention has no force. Suit No. 224 of 1911 was dismissed on the ground that the Dekkhan Agriculturists’ Relief Act was not applicable to that suit and therefore it was not competent to the plaintiff to claim an enquiry into the nature of the document of ostensible sale. in other words, the suit was thrown out as being incompetent. The stage had not been reached at all in that case for an examination of the circumstances connected with the transaction dated 13-7-1899, and therefore by no stretch of imagination could it be contended that there was an adjudication, much less a final adjudication, in that case and that the said adjudication was that the transaction was a sale. There was no adjudication one way or the other in that suit in respect of the nature of the transaction dated 13-7-1899.
(25) Mr. Chitale has invited our attention to an unreported decision of the learned Chief Justice in ‘Civil Revn. Appln. No. 470 Of 1950 (Bom) (C)’. It is true that in that case the learned Chief Justice held that the consent decree amounted to a final adjudication within the meaning of Section 25 (1) of the Act of 1947. With great respect, the learned Chief Justice was right, because in that case the parties had come to an agreement as to the nature of a sale-deed and that agreement was incorporated in the consent decree. In those circumstances, the learned Chief Justice held, rightly with respect, that the decree was an adjudication, no matter whether it was a decree ‘in invitum’ or by consent. In another unreported decision of the learned Chief Justice in ‘Civii Revn. Appln. No. 38 of 1951 (Bom) (D)1, it was held, rightly with respect again, that the consent decree did not amount to an adjudication within the meaning of Section 25 (1) of the Act of 1947, and the reason was that the consent decree in that case was based on the view of the parties themselves that the transfer was in the nature of a mortgage. Such a decree cannot amount to an adjudication within the scope of Section 35(1) of the Act of 1947. For an adjudication to fall under Section 25(1), it must be an adjudication that the transfer! was other than a mortgage. It is true that in the’ course of his judgment in — ‘Gangaram Lila-chand v. Balku Sambhu’, (D), the learned Chief Justice said:
“…..the scheme of the Bombay Agricultural Debtors Relief Act is that if a competent Court on the evidence comes to the conclusion that a transfer is a sale and not a mortgage, then the same question should not be litigated in the Debt Adjustment Court.”
These observations were made and meant in the context of the facts of that case, and we are of the opinion that they were not intended to lay down a principle that unless evidence is recorded in a proceeding, there can be no adjudication in any case. In another unreported decision in ‘Civil Revn. Apnln. nO. 1139 of 1951 (Bom)’ (G), the learned Chief Justice held that the dismissal of a prior suit on a preliminary ground that it was incompetent created no bar under Section 25(1) of the Act of 1947. With respect, we take the same view and hold that the contention of Mr. Chitale that the present application of the debtors is barred under Section 25 (1) of the Act of 1947 by reason of the fact that Govind’s suit No. 224 of 1911 was dismissed has no substance.
(26) The result is that the application succeeds, the orders passed by the Courts below are set
aside and the application is sent back to the
trial Court for disposal in accordance with the
law. The petitioners would be entitled to their
costs in this Court and in the lower appellate
Court. The costs in the trial Court will be costs
in the cause.
(27) Case remanded.