J.P.DESAI, J. - (1.) The respondent M/s. Jayshree Industries took a loan from the appellant-Gujarat State Financial Corporation and pledged and hypothecated machinery and other properties with the Corporation as a security for the said loan. The amount was payable by instalments. As the respondent failed to pay the instalments as agreed the appellant-Corporation filed Miscellaneous Civil Application No. 113 of 1977 in the District Court at Rajkot under sec. 31 of the State Financial corporations Act 1951 (hereinafter to be referred to as the Act for enforcement of its claim by attachment and sale of the pledged and hypothecated properties of the opponent Jayshree Industries. The application was resisted by the responded. Pending the hearing of the said application the respondent gave an application. Ex. 42. requesting the District Judge to grant instalments. Another application Ex. 49 was also submitted to the learned District Judge raising a contention that the sale proclamation which was issued was illegal and may be canceled and a fresh sale proclamation may be issued. The applications were resisted by the Corporation. So far as the grant of instalments is concerned it was also contended that their is no provisions for grant of instalments in such proceedings and therefore. the respondent was not entitled to claim any instalments. It was also contented that the provisions of Order 20 Rule 11 C.P.C. do not apply to these proceedings and. therefore the respondent cannot claim any relief under the said provisions of the Civil that Procedure Code. As regards legality of the sale proclamation it was contended that it was quite legal. The learned District Judge who heard these applications held that the provisions of the Civil Procedure Code which are not inconsistent with the provisions of the Act can be availed of and instalments can be granted and accordingly be allowed that application and granted instalments He held that the sale proclamation was not shown to be illegal but as ins instalments were being granted to the opponent the application was allowed and the proclamation of sale was set aside and the sale was postponed. Being dissatisfied with the order of the learned District Judge the Gujarat State Financial Corporation has come in appeal before this court.
(2.) The learned advocate Mr. V. B. Patel who appears on behalf of the appellant-Corporation drew my attention to sec. 46B of the Act which reads as follows: "The provisions of this Act and of any rules or orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in the memorandum or articles of association of an industrial concern or in any other instrument having effect by virtue of any law other than this act but save as aforesaid the provisions of this Act shall be in addition to and not in derogation of any other law for the time being applicable to an industrial concern". Relying upon the above provisions in the Act he urged that the provisions of the Civil Procedure Code cannot have any application except where specifically provided in the Act. lIe drew my attention to sub-sec. (6) of sec. 32 which prosides that the District Judge shall proceed to investigate the claim of the Corporation in accordance with the provisions contained in the Civil Procedure Code 1908 in so far as such provisions may be applied thereto. He also drew Why attention to some other provisions in the Act which provide for folLowing the provisions of the Civil Procedure Code. He took me through the whole of the Act and submitted that there was no provision in the Act enabling the learned District Judge to grant instalments and hence looking to the Provisions of sec. 46 of the Act instalments cannot be granted by having recourse to Order 20 Rule 11 C.P.C. as done by the learned District Judge. In view of the above provisions of the Act which do not provide for grant of instalments or application of order 20 Rule 11 C.P.C. to these proceedings the learned advocate Mr. D.D. Vyas who appeared on behalf of the respondent was not able to support the order of the learned District Judge because the order proceeded on the assumption that Order 20 Rule 11 C.P.C. can be pressed into service in such proceedings. I may also mention here that even if the provisions of the Code of Civil Procedure are applicable to such proceeding. then also instalments could not be granted because the properties of the opponent-respondent are pledged hypothecated with the Corporation and the application is filed for attachment and sale of these properties which factual position is not disputed by Mr. Vyas.
(3.) A decision of this Court reported in J. P. Steel Industries v. state Bank of Saurashtra 19 G.L.R. 998 shows that in a suit to recover the mortgage amount no instalments can be granted under Order 20 Rule 11 C.P.C. The provisions of order 34 of the Code of Civil Procedure which pertain to suits relating to mortgage also apply to a suit in case the properties are pledged or hypothecated. In view of this instalments could not have been granted in these proceedings under Order 20 Rule 11 C.P.C. even if the provisions of the Code of Civil Procedure were applicable. Mr. Patel also drew my attention to a decision of this Court reported in. wherein it is laid down that in a suit to recover amount by sale of properly charged instalments cannot be granted. The learned advocate Mr. Vyas was also unable to satisfy me as to how provisions of Order 20. Rule 11 C.P.C. could have been pressed into service in these proceedings in the above circumstances. Mr. Vyas of course relied Upon a decision of the Supreme Court in the case of The Gujarat State Financial Corporation v. M/s. Natson Manufacturing Co. Pvt. Ltd. A.I.R. 1978 S.C. 1765 and submitted that an application under sec. 31 of the Act was neither a plaint nor an application for execution but it was something akin to an application for attachment of property in execution of a decree at a stage prior to the final decree and therefore the above two decisions of this Court may not be of any assistance in deciding whether instalments could be granted under Order 20 Rule 11 C.P.C. or not. It is difficult to accept this submission of Mr. Vyas because such an application would be more in the nature of an application to pass a final decree be attachment and sale of the propose. The application cannot in the strict sense of the term be said to le an application for execution because before execution a final decree must follow the preliminary decree. But any way it is not necessary to dilate upon this question any further because the provisions of the Code of Civil Procedure and particularly Order 20 Rule 11 are not applicable in the present case. I may observe here that if we that the application under sec. 31(1) either as an application for execution or as an application for passing a final decree then also instalments cannot be granted without the consent of the Corporation looking to the provisions of Order 20 Rule 11 C.P.C. These provisions clearly show that if instalments are already granted by a decree instalments cannot again be granted in execution proceedings unless the judgment-creditor consents. In the present case the agreement between the Corporation and the respondent provided for instalments and that agreement has to be treated as at any rate a decree between the parties if we treat an application under sec. 31(1) as an application for execution or an application for passing a final decree.;