MEHR BHIMA VIRAM Vs. MEHR JETHA GIGA

JUDGEMENT

(1.) This civil revision application raises some difficult questions under the S.A.D.R. Act which will hereinafter be referred to as the Act and one of them is whether when a mortgage is executed by four persons one of them alone can file an application for the adjustment of debts in a case where the other three mortgagors are also debtors. The other point raised in this application is that the mortgage was executed on 8 subsequent to the date on which the Act came into force namely on 5-8-54 and that therefore an application for the adjustment of such debts cannot be made. The last point urged is that the four mortgagors are members of a joint Hindu family and therefore one of them alone cannot file this application for the adjustment of debts of the joint Hindu family. These three questions will be dealt with seriatim.

(2.) Under section 4(1) of the Act any debtor ordinarily residing in any local area for which a Board has been constituted under section 5 of the Act or any of his creditors may within twelve months of the date of coming into force of the Act or within three months from the date of constitution of the Board whichever is later make an application to the Board for adjustment of debts. Debt is defined in section 2(5) of the Act as follows :-

(3.) It is contended that the liability referred to in this definition may be individual liability or joint or several liability. But it is contended that under section 44 of the Act save as otherwise expressly provided in the Act the provisions of the Code of Civil Procedure 1908 shall apply to all proceedings under Chapter 11 of the Act. It is therefore argued that the provisions of Order 34 Rule 1 C. P. Code apply and that therefore all the interested persons must be made parties when a person wants to redeem a mortgage. The contention is that the application is an application to redeem a mortgage and that once an application is filed under the Act the provisions of the Civil Procedure Code have to be applied to all proceedings under Chapter 11 of the Act.