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1962 DIGILAW 42 (GUJ)

KHUMAN HATHIA NAJA v. PATEL GIGABHAI SHAMLA

1962-03-20

V.B.RAJU

body1962
V. B. RAJU, J. ( 1 ) THE Board under the S. A. D. R. Act directed the creditor to pay certain amount to the debtor in the course of proceedings for the adjustment of debts under sec. 4 of the S. A. D. R. Act. In appeal the appellate Court held that the creditor cannot be asked to pay any amount to the debtor. ( 2 ) THIS view is challenged in revision and it is contended that in view of section 44 of the S. A. D. R. Act the provisions of the Civil Procedure Code are applicable. Section 44 of the S. A. D. R. Act reads as under :-SAVE as otherwise expressly provided in this Act the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings under this Chapter ( 3 ) ORDER 34 Rule 9 C. P. Code deals with a preliminary decree in a redemption suit referred to in O. 34 Rule 7 C P. Code. Order 34 Rule 9 C. P Code reads as under :-NOTWITHSTANDING anything hereinbefore contained if it appears upon taking the account referred to in rule 7 that nothing is due to the defendant or that he has been overpaid the Court shall pass a decree directing the defendant if so required to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall if necessary be put in possession of the mortgaged property. ( 4 ) RELIANCE is placed on Deneppa Satveerappa v. Malgonda Anande 58 Bombay Law Reporter 324 where it was observed as follows :-SECTION 46 of the Act provides that the provisions of the Civil Pro. Code would apply to proceedings under Chapter II of the Act save as Otherwise expressly provided in the Act. In other words if it had been expressly provided in the Bombay Agricultural Debtors Relief Act that the relevant provisions of taking accounts which are included in O. XXXIV of the Code should not be invoked in adjustment proceeding it would have been another matter. The only provision which can be regarded as material in this matter would be the provision of scaling down. There is a provision as to how debts have to be scaled down under sec. The only provision which can be regarded as material in this matter would be the provision of scaling down. There is a provision as to how debts have to be scaled down under sec. 31 and it must be conceded that when applying the Code of Civil Procedure for taking accounts subsequent to the making of the application and prior to the passing of the award it would not be open to the Court to invoke the provisions relating to scaling down contained in sec. 31. But save for this provision I do not see why the relevant rules for taking accounts contained in the Code of Civil Procedure should not be invoked in adjusting the debts under the provisions of the Bombay Agricultural Debtors Relief Act. That is why I think the Courts below were right in assuming that before the amount due to the mortgagee is finally determined it would be necessary to take accounts of the dealings between the parties from the date of the application to the date of the award. ( 5 ) THE view taken in 58 Bom. L. R. 324 does not justify the view that the creditor may be asked to pay money to the debtor who makes an application for the adjustment of debts. As observed in the above Bombay case if there is an express provision in the B. A. D. R. Act regarding certain matters a different provision cannot be applied. Sec. 30 of the B. A. D. R. Act deals in a detailed manner with the question how an award is to be drawn up. There is no provision in sec. 30 enabling the Court to direct the creditor to pay any amount to the debtor. Therefore to direct the creditor to pay any amount to the debtor would be contrary to sec. 30 of the B. A. D. R. Act. It is also laid down in sub-sec. (1) of sec. 31 of the B. A. D. R. Act that it is only the amount of debt to be scaled down which will be directed to be paid. There is no provision that the amount due to the debtor if any should be determined. ( 6 ) THE civil revision application is therefore dismissed. There will be no order as to costs. Application dismissed. .