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Samatkhan Qulabkhan Malek Vs. Nanubha Bapaji Thakore and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1963)4GLR705
AppellantSamatkhan Qulabkhan Malek
RespondentNanubha Bapaji Thakore and ors.
Cases ReferredThakoredas v. Lallubhai
Excerpt:
- - but if in addition to ordering a remand the decree of the trial court is set aside and the appeal to the appellate court is decided it is clearly a case decided......that was a suit where the appellate court set aside the order on an award and remanded the suit for trial. it is clear that these observations are obiter because the rule was discharged by the learned judges of the bombay high court mainly on the ground contained in the penultimate paragraph of that judgment but the learned judges proceeded to give another reason for refusing to entertain the application and that was that no case had been decided. this was only the second reason for refusing to entertain the application and not the main ground. the observations of the learned judges of the bombay high court are therefore strictly not ratio decidendi.3. with great respect it is difficult to agree with the proposition that the order the appellate court setting aside the order of.....
Judgment:

V.B. Raju, J.

1. Opponent No. I gave an application under the S.A.D.R. Act. On the preliminary issue the Board held that he was a debtor. In appeal filed against that decision the learned District Judge Surendranagar held that the debts amounted to more than Rs. 250 and remanded the matter to the Board for giving an opportunity to any of the creditors to remit a portion of the debts so as to reduce the total indebtedness of the debtor to less than Rs. 250. It is against that order that one of the creditors original opponent No. 1 has now come in revision.

A preliminary objection has been taken by the Learned Counsel for the opponent and he contends that as the matter has been remanded to the Board no case has been decided. His contention is that an order remanding the matter to the original Court does not amount to a case decided so as to invite the application of Section 115 C.P. Code and he relies on Thakoredas v. Lallubhai 25 Bom. L.R. 452. In that case Macleod C.J. observed as under:

But there is another ground on which we refuse to entertain the application and that is that the case has not been decided. All that the Court has found is that there had been no lawful agreement or compromise of the suit and therefore it directed a trail of the suit. The rule will therefore be discharged with costs.

2. That was a suit where the appellate Court set aside the order on an award and remanded the suit for trial. It is clear that these observations are obiter because the rule was discharged by the learned Judges of the Bombay High Court mainly on the ground contained in the penultimate paragraph of that judgment But the learned Judges proceeded to give another reason for refusing to entertain the application and that was that no case had been decided. This was only the second reason for refusing to entertain the application and not the main ground. The observations of the learned Judges of the Bombay High Court are therefore strictly not ratio decidendi.

3. With great respect it is difficult to agree with the proposition that the order the appellate Court setting aside the order of the trial Court and remanding the suit for trial is not a case decided. It must be a case decided because the decree of the trial Court is set aside. The appeal to the appellate Court is decided by setting aside the decree of the trial Court. The very fact that the appeal to the appellate Court has been decided and that the decree of the trial Court is set aside makes it clear that the case has been decided. It may be that in addition to deciding the case the appellate Court Judge may have passed an order of remand. But if in addition to ordering a remand the decree of the trial Court is set aside and the appeal to the appellate Court is decided it is clearly a case decided. With great respect therefore I find it difficult to agree with the reasoning of the learned Judges to the Bombay High Court that the appellate Court which decided an appeal by setting aside the order of the trial Court and remanding the suit for trial has not decided a case.

4. On merits there is no substance in the contention of the Learned Counsel for the applicant because the proviso to Section 16 of the S.A.D.R. Act makes it optional for the creditors to remit a portion of their claims so as to reduce the total amount of the debts to a sum not exceeding Rs. 250 Sub-sections (1), (2) and (3) of Section 16 of the S.A.D.R. Act read as follows:

(1) On the date fixed for the hearing of an application made under Section 4 of the Board shall decide the following point as a preliminary issue viz whether the person for the adjustment of whose debts the application has been made is a debtor.

(2) If the Board finds that such person is not a debtor the Board shall dismiss the application forthwith;

Provided that before the application is so dismissed the creditors or any of them may remit any specific portion of their claims so as to reduce the total amount of the debts of all the creditors due from such persons on the date of application to a sum not exceeding Rs. 25 000/-. In such case the Board shall not dismiss the application but shall proceed further with the same.

(3) The portion of the debts in respect of which the claim is remitted under Sub-section (2) shall be extinguished.

5. In this case the Board did not find that the debts amounted to more than Rs. 250 The question of remission of a part of the debts did not therefore arise. That question arose only at the appellate stage in view of the fact that the appellate Court was inclined to take the view that if a portion of the debts is not remitted the debts would exceed Rs. 25,000 The fact that the appellate Court decided to apply the proviso to Section 16 of the S.A.D.R. Act is not a material irregularity. It is also true that the appellate Court directed the trial Court to decide the matter of applying the proviso to Section 16 of the S.A.D.R. Act. That is also not a material irregularity.

The revision application is therefore dismissed. No order as to costs.


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