PARMAR TEJA KAMA Vs. GADHECHA MANILAL SHAVCHAND

JUDGEMENT

(1.) The petitioners in this Civil Revision Application are the original debtors who applied to the Additional Subordinate Judge, Rahpar for adjustment of their debts alleging that opponents Nos. 7 8 and 9 in this Civil Revision Application were the successors of the original mortgagees in whose favour the ancestors of the debtors had created a mortgage in 1896-97 A. D. equivalent to S. Y. 1953 for 60 Kories equivalent to Rs. 20.00. The learned trial Judge decided the preliminary issues as required by sec. 17 of the Bombay Agricultural Debtors Relief Act 1947 ( hereinafter referred to as the Act ) and he held that the present petitioners were debtors within the meaning of the Act and that their total debts did not exceed Rs. 15 0 Thereafter there was no appeal against the finding recorded on this preliminary issue though an appeal could have been filed under the provision of sec. 43 sub-sec. (1)clause (ii). When the matter proceeded on the merits the trial Court found that the mortgage debt in respect of which the adjustment was claimed as between the present petitioners and present opponents Nos. 7 8 and 9 had not been proved by the debtors and therefore the trial Court dismissed the application of the debtors. Against this finding of the trial Court there was an appeal and the lower appellate Court confirmed the finding of the trial Court and the present Civil Revision Application has been filed against the judgment and order of the lower appellate Court dismissing the appeal filed by the debtors.

(2.) Mr. R. C. Mankad appearing on behalf of the petitioners contended before me that as no appeal had been filed against the order passed under sec. 17 of the Act though such an appeal could have been filed under sec. 43(1)(ii) of the Act it was not open to opponents Nos. 7 8 and 9 to contend at the stage of the appeal against the final award that the petitioners were not debtors within the meaning of the Act. It is true that under the scheme of the Act on the date fixed for the hearing of the application made under sec. 4 of the Act the Court has to decide two preliminary issues:- (1) whether the person for the adjustment of whose debt application has been made is a debtor within the meaning of the Act and (2) whether the total amount of debts due from such person on the date of the application exceeds Rs. 15 0 If both these issues are answered in favour of the debtor viz. that he is a debtor within the meaning of the Act and that the total amount of debts due from him does not exceed Rs. 15 0 the Court has to proceed to take accounts as provided in the Act. As I have already indicated an appeal lies under sec. 43(1)(ii) from that order passed under sec. 17. Prima facie and considering the matter apart from any authorities on the point it is clear that sec. 43(1)(ii) is an enabling provision under which the party against whom the order has been passed under the provisions of sec. 17 can file an appeal notwithstanding the fact that the finding has been recorded on a preliminary issue. However there is no provision similar to the provision of sec. 97 Civil Procedure Code in the Act Under sec. 97 where any party aggrieved by a preliminary decree does not appeal from such decree he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decrees In the absence of any provision analogous to sec. 97 Civil Procedure Code it cannot be said that the party against whom the order under sec. 17 has been passed cannot agitate the questions which have to be decided under sec. 17 of the Act as preliminary issues when the appeal is filed against the final award.

(3.) This conclusion of mine is fortified by the two judgments of the Bombay High Court. The first judgment is in the case of .. In that case a Division Bench of the Bombay High Court consisting of Rajadhyaksha and Dixit JJ. held that an appeal lies under sec. 43 of the Act against a decision of the Court on the preliminary issues under sec 17(1) of the Act. The Division Bench in that case further held that a decision under sec. 17(1) of the Act is an appealable order under sec. 43 of the Act and a mere failure to appeal from that order does not prevent a party from challenging its correctness when an appeal is filed against the final award made under sec. 32 of the Act. I have come independently to the same conclusion on an analysis of the section and I am in respectful agreement with the ratio decidendi of this decision of the Division Bench of the Bombay High Court in 53 Bom. L. R. 793.