GOPALDAS SAMBHUDAS Vs. VITHAL MOHANJI

JUDGEMENT

(1.) The point in this case is one of some importance on which there are conflicting rulings of this Court. The question is whether in a suit in which accounts have been taken under the Dekkhan Agriculturists Relief Act, more can be awarded than could be awarded under the bond itself if no accounts have been taken. In the case of Dadabhai V/s. Dadabhai (1908) I.L.R. 32 Bom. 516 s. c. 10 Bom. L.R. 745 it was held that Section 13 of the Dekkhan Agriculturists Relief Act is imperative, and the amount found due in a suit upon taking accounts must be awarded. On the other hand, in Vithaldas Bhagwandas V/s. Murtaja Huahein (1921) I.L.R. 46 Bom. 764, s. c. 24 Bom. L.R. 267 it was held by Macleod C.J. that it would be a very curious result if a debtor owing to his seeking the relief afforded by the Dekkhan Agriculturists Relief Act should have to pay more than he is obliged to pay according to the terms of his bond, and "I cannot imagine that it was ever intended that the law should produce such an extraordinary result as that." In tie same volume there is another decision, Raghunath V/s. Ramchandra (1921) I.L.R. 46 Bom. 384, s. c. Bom. L.R. 1098 which is precisely on all fours with the present case, where it was held that once a creditor has taken a bond, then in no possible case can he recover in a suit on the bond more than the principal amount with interest. The case of Dadabhai V/s. Dadabhai was referred in that case, but it was not overruled. The question is of some importance, and to my knowledge there are several appeals on this very point pending at the present moment. I think it is desirable that the case should be heard by a bench at as early a date as possible. I will accordingly not decide it. There will be no order as to costs.

(2.) The appeal accordingly was heard by a bench consisting of Patkar and Murphy JJ, on December 5, 1928, when their Lord ships made a reference to a full bench. Patkar, J.

(3.) In this case, the plaintiff sued to recover possession of certain property from the defendant. In the written statement, the defendant claimed that the accounts should be taken under the Dekkhan Agriculturists Relief Act and that he should be allowed to redeem the mortgage. The suit was converted into a redemption suit, presumably, under Section 15(c) of the Dekkhan Agriculturists Relief Act. The learned Subordinate Judge on taking accounts found that the principal amount was Rs. 1,570-15-0 and held that Rs. 3,100-8-6 were due on taking accounts under the Dekkhan Agriculturists Relief Act.