BOMBAY HIGH COURT

                                            Basavanappa Shivappa

                                                        Vs.

                                              Neelappa Adiveppa

                                    Civil Revn. Appln No. 1349 of 1953

                                              (Gajendragadkar, J.)

                                                   12.09.1955

                                                     ORDER

Gajendragadkar, J.

1. In proceedings taken under Section 4, Bombay Agricultural Debtors Act, two persons who
were shown in column 7 as co-sharers with the original petitioner have been ordered to be
transposed as petitioners. It is this order for transportation that is challenged by Mr. Desai on
behalf of the creditor.

2. The transaction in question took place on the 5-6-1931. It was an ostensible sale effected by
Neelappa, Basappa and Kalappa. Neelappa applied in 1949 for adjustment of the debt evidenced
by this transaction. The trial Court held, that the transaction was a sale. In appeal, it has been held
to be a mortgage and the proceedings have been sent back for taking accounts. A revisional
application preferred against this order was summarily dismissed by this Court on 21-7-1952. At
this stage, Basappa and Adiveppa, son of Kalappa, applied to be transposed as petitioners in
these proceedings. They alleged that they were co-sharers in respect of the property, subject-
matter of the original transaction, and that they were interested in prosecuting the proceedings in
their own right. This application has been allowed.

3. Mr. Desai for the petitioner contends that the learned Judge was in error in allowing the
application for transposition at this late stage. He argues that the preliminary issues have already
been found, the matter has been agitated in three courts and it is at a very late stage that the two
cosharers chose to apply for transposition. In my opinion this argument cannot succeed. Section
46, Bombay Agricultural Debtors Relief Act makes the provisions of the Code of Civil
Procedure applicable to proceedings under the Act, land the proviso to Section 46 enables the
Court to exercise its powers to add or strike out parties under Rule 10 of O. 1 of the Code in a
proper case and on such terms as may appear to the Court to be just. This proviso makes it clear
that the addition of the parties or striking them out would not necessarily be governed by
considerations of delay. In the present case, the two parties that have been transposed as
petitioners were shown as coshares in column 7, and it was really the duty of the Court under
Section 14 of the Act to issue notice to these co-sharers. In my opinion, it would be unfair to
penalise the parties for the omission of the Court to issue notice to them. The creditor as much as
the petitioner and the two co-sharers were interested in the property, the transaction In respect of
which was being adjudicated upon. Therefore, I am unable to accept the argument that the order
passed by the learned Judge transposing the two co-sharers to the side of the petitioners suffers
from any infirmity for which interference of this Court under Section 115 would be justified.

4. Mr. Desai then argued that the order transposing these parties to the side of petitioners need
not and cannot mean that the petitioners would automatically be entitled to an order for the
adjustment of debts. What points can hereafter be raised between the added petitioners and the
creditors and what issues would have to be tried and decided between them has been elaborately
discussed by the learned Judge below. I do not think it is necessary for me to coyer that ground in
the present revisional application. Mr. Desai has invited my attention to the fact that having
regard to the definition of the word "debtor", contained in Section 2, Sub-Section (5) of the Act
and having regard to the provisions of Section 6, different considerations may arise and different
issues may fall to be considered between the added parties and the creditor, according as the
added parties and the original debtor were members of an undivided family or were separate.
These point were raised before the learned Judge and he has observed that the transposition of
the present additional parties would not necessarily mean that nothing more remains to be
decided between them and the creditor. Therefore, in my opinion, it is unnecessary to deal with
Mr. Desai's argument that he should be entitled to raise points of defense against the parties who
have been added by the order under revision.

5. The revision application therefore fails and the rule is discharged with costs.
Rule discharged.