SAMATKHAN GULABKHAN MALEK Vs. NANUBHA BAPAJI THAKORE

JUDGEMENT

(1.) Opponent No. 1 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. 25 0 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. 25 0 It is against that order that one of the creditors original opponent No. 1 has now come in revision.

(2.) 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 sec. 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 :

(3.) 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.