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Pevand Bai Holaram Sindhi Narangibai Mandir Lashkar Vs. Kishan Lachhomal Sindhi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberCivil Misc. Appeal No. 7 of 1957
Judge
Reported inAIR1958MP80
ActsDebt Law; Displaced Persons (Debts Adjustment) Act, 1951 - Sections 34 and 41
AppellantPevand Bai Holaram Sindhi Narangibai Mandir Lashkar
RespondentKishan Lachhomal Sindhi
Appellant AdvocateKishan Chand Dulani, Adv.
Respondent AdvocateManik Chand Jain, Adv.
DispositionAppeal allowed
Excerpt:
- .....the application on the shortground that section 34 of the act allows only displaced debtors to apply for variation of maintenance allowance and the applicant being a displaced creditor was not entitled to apply under the section. aggrieved by the order, this appeal has been filed. 2. a preliminary objection has been taken that the appeal is barred by the restriction contained in section 41 of the act which says that where the subject matter of the appeal relates to an amount of debt, which is less than rs. 5000/-, no appeal shall lie. it is contended that the subject matter in this appeal is less than rs. 5000/- and so the appeal is not competent. but the subject matter of this appeal does not relate to any amount of debt; the question involved in the appeal is whether the appellant.....
Judgment:

A.H. Khan, J.

1. Under Section 34 of the Displaced Persons Debts Adjustment Act (Act No. 70 of 1951), the appellant filed an application before the Tribunal constituted under Section 4 of the Act for the increase in her maintenance allowance from Rs. 6 per month to Rs. 15/- per month. It is alleged that originally a decree for maintenance was passed in favour of the appellant against Mst. Chanchal Bai, the mother of the respondent.

The respondent as an heir to his mother obtained Rs. 8000/- as compensation for properties left in Pakistan, over which a lien was created for the appellant's maintenance. It was said that after receiving the compensation, Kishen the respondent has increased the volume of his business and that she is therefore entitled to a correspondent increase in the amount of her maintenance. The trial Court dismissed the application on the shortground that Section 34 of the Act allows only displaced debtors to apply for variation of maintenance allowance and the applicant being a displaced creditor was not entitled to apply under the section. Aggrieved by the order, this appeal has been filed.

2. A preliminary objection has been taken that the appeal is barred by the restriction contained in Section 41 of the Act which says that where the subject matter of the appeal relates to an amount of debt, which is less than Rs. 5000/-, no appeal shall lie. It is contended that the subject matter in this appeal is less than Rs. 5000/- and so the appeal is not competent.

But the subject matter of this appeal does not relate to any amount of debt; the question involved in the appeal is whether the appellant is entitled to present his application before the Tribunal under Section 34 of the Act. This is obviously a question which does not relate to the amount of debt and I am, therefore, of the opinion that Section 41 does not place any restriction on the appeal under consideration. The preliminary objection is, therefore overruled.

3. Section 34 of the Displaced Persons (Debts Adjustment) Act (Act No. 70 of 1951) runs thus :

'Variation of maintenance allowances : Where a displaced debtor has been ordered to pay an allowance periodically to any person for his maintenance under any decree or order of a Court, or is liable to pay such allowance under any agreement voluntarily entered into, the rate at which such allowance is payable may be varied by the Tribunal on application made to it in this behalf, if in view of the change in the circumstances of the displaced debtor, the Tribunal thinks that such variation is necessary, and such variation shall have effect for such period as the Tribunal may direct, notwithstanding anything in any decree, order or agreement to the contrary.'

4. It is evident from the perusal of the section that it provides for the variation of maintenance allowance in proper cases. It is nowhere said in the section as to who will apply for the variation of maintenance allowance. All that the section says is that

'the rate at which such allowance is payable may be varied by the Tribunal on application made to it in this behalf.' A similar provision exists in Section 489 of the Criminal Procedure Code and under it both the parties to a proceeding of this nature can apply for alteration in allowance. And it stands to reason that both the parties should be permitted to apply to the Court for alteration in the allowance if there is a change in circumstances. The expression 'variation of maintenance allowance', which is the heading of the section in itself indicates an increase or decrease in the allowance. An increase will be at the instance of the creditors and a decrease will be at instance of the debtor.

5. In this view of the matter, I hold that any displaced person can apply for alterationof maintenance allowance that may be necessary by reason of the change in circumstances, no matter whether the displaced person is a debtor or a creditor. The object of this Section 34 is to afford relief to both and to hold otherwise will not only be against the general principle of equality before the law but it may also cause great hardship to the creditor in some cases.

6. For reasons stated above, I allow the appeal and remit the case to the Tribunal for proceeding in the matter in the light of observations made above.

7. Parties to bear their own costs.


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