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Bai Dhuli W/O. Sutar Shivabhai Purshottam Vs. Patel Motibhai Revandas and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1962)4GLR143
AppellantBai Dhuli W/O. Sutar Shivabhai Purshottam
RespondentPatel Motibhai Revandas and anr.
Cases ReferredAkbaralli Abedalli v. Godha Lahanu
Excerpt:
.....the award. in the instant case there was no failure to file an appeal under section 17. 3. i therefore hold that the lower court was wrong in going into the question of status of the applicant in an appeal against the award under section 32 of the b......in the proceedings under section 4 of the b.a.d.r. act for the adjustment of debts the creditors filed an appeal against an order under section 17 holding that the applicant was a debtor. after an award they filed another appeal and in that award the learned appellate judge held that the finding that the applicant was a debtor was erroneous and the appellate court therefore set aside the award ordering the return of the property to the debtor.2. in revision it is contended that an appeal against the order passed under section 17 of the b.a.d.r. act having been filed in the appellate court it was not open to the appellate court to deal with that question in the appeal against the award. the appellate judge holding that the transaction was a mortgage debt set aside the award on the.....
Judgment:

V.B. Raju, J.

1. In the proceedings under Section 4 of the B.A.D.R. Act for the adjustment of debts the creditors filed an appeal against an order under Section 17 holding that the applicant was a debtor. After an award they filed another appeal and in that award the learned appellate Judge held that the finding that the applicant was a debtor was erroneous and the appellate Court therefore set aside the award ordering the return of the property to the debtor.

2. In revision it is contended that an appeal against the order passed under Section 17 of the B.A.D.R. Act having been filed in the appellate Court it was not open to the appellate Court to deal with that question in the appeal against the award. The appellate Judge holding that the transaction was a mortgage debt set aside the award on the ground that the applicant had not proved that he was a debtor. Under the B.A.D.B. Act order can be passed under various sections and some of them are appealable. Section 43 of the B.A.D.R. Act provides that an appeal shall lie: (i) from every order passed under Sub-section (3) of Section 8; (ii) from every order passed under Section 17; (iii) from every order passed under Section 24; (iv) from every order passed under Sub-section (2) of Section 36; and (v) from every award made under the Act other than an award made in terms of a settlement under Sub-section (4) of Section 8 or under Section 9 or an award made under Section 33 before the making of which the creditors agreement has been obtained under Sub-section (1) thereof or an award before the making of which neither the debtor nor any of the creditors produced evidence to enable the Court to determine the amount of debt due from the debtor. The order under Section 17 of the B.A.D.R. Act is an order holding the applicant to be a debtor and holding that the amount due from such a person did not exceed Rs. 15 0 Section 17 of the B.A.D.R. Act so far as relevant provides as follows:

(1) 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/-

(2) If the Court finds that such person is not a debtor or that the total amount of debts due from such person on the date of the application is more than Rs. 15 0 the Court shall dismiss the application forthwith.

Section 22 of the B.A.D.R. Act deals with the mode of taking accounts.

Section 27 of the B.A.D.R. Act provides as follows:

After taking accounts under Section 22 the Court shall in the manner hereinafter provided determine

(1) the particulars of the property belonging to the debtor

(2) the value of the said property

(3) the particulars of any encumbrances of the said property and

(4) the paying capacity of the debtor.

Section 31 of the B.A.D.R. Act provides that debts payable by the debtor should be scaled down in the manner specified thereunder. Section 32 is the section relating to award. This section so far as relevant provides as under:

(1) After determining the amount of debts scaled down in the manner provided in Section 31 the Court shall save as otherwise provided in Section 33 make an award.

Sub-section (2) of Section 32 provides that the award shall be in the prescribed form and shall be drawn up subject to certain provisions stated in Sub-section (2) namely the amount of secured debt shall be scaled down fixing the priority in which debts are to be paid fixing the amount of installments and ordering the delivery of possession of any property. In an appeal against the award therefore only the matters which are referred to in Section 32 are the subject matter of the appeal. Therefore it is not open to a creditor in an appeal against an award under Section 32 to go into the question whether the applicant is a debtor or not. The scheme of B.A.D.R. Act is to split up the proceedings into two stages both of which are independent. The second stage begins with the taking of accounts under Section 20 after it is found that the applicant is a debtor and that the total of debts does not exceed Rs. 15 0 The B.A.D.R. Act has provided for appeals against the orders passed at various stages and in an appeal against an award under Section 32 only the matters referred to in Section 32 are the subject matter of the appeal. If an appeal is to be filed against the finding that the applicant is a debtor it is to be done by filing an appeal against the order under Section 17 of the B.A.D.R. Act. The Learned Counsel for the opponents relied on Akbaralli Abedalli v. Godha Lahanu 58 Bombay Law Reporter 335 But that case can be distinguished on facts because that case related to the question whether the question of mortgage and status can be agitated in appeal under Section 32 no appeal having been filed under an order under Section 34. No doubt there are some observation with respect failure to appeal against an order passed under Section 17 and it is observed that failure to appeal against an order passed under Section 17 does not preclude from challenging the correctness of such finding in an appeal against the award. These observations are obiter because the case related to the question under Section 34 and not one under Section 17 of the B.A.D.R. Act. Moreover the facts are distinguishable because in the instant case the appeal had actually been filed. In the instant case there was no failure to file an appeal under Section 17.

3. I therefore hold that the lower Court was wrong in going into the question of status of the applicant in an appeal against the award under Section 32 of the B. A D.R. Act. The application is therefore allowed the order of the lower appellate Court is set aside and that of the B.A.D.R. Court is restored. There will be no order as to costs.


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