JUDGMENT :

A.P. THAKER, J.

1. This is an Appeal filed under Section 96 of the Code of Civil Procedure by the original plaintiff being aggrieved and feeling dissatisfied with the judgment and decree dated 27.11.1997 passed in Civil Suit No. 4635 of 1989 by the City Civil Court at Ahmedabad.

2. The Appellant has contended that he is the original plaintiff who has filed the aforesaid Civil Suit for recovery of Rs. 17,101/- along with interest at the rate of 12% per annum being an amount recovered by the defendant-respondent from auction sale of motor vehicle Truck Bearing No. GCT-4449 which was hypothecated by the original owner Abdul Rehman Abdulmalek with the Appellant-plaintiff for the security of loan advanced by the Appellant to him.

2.1 It is contended that the learned trial Court has tried the Suit and ultimately dismissed the Suit of the Appellant-plaintiff. It is the contention of the plaintiff- appellant that the learned trial Court has erred in not appreciating that the appellant has first charge by way of hypothecation of the Truck in question as it was offered as security for the due repayment of the loan advanced by the appellant-plaintiff to the original owner of the Truck namely Abdul Rehman Adbulmalek. According to it, the sale price due to auction is required to be paid to the plaintiff-appellant as it is a secured creditor. It is contended that the trial Court has erred in facts and law in not deciding the Issue No. 1 in favour of the appellant. It is contended that the defendants had knowledge about the hypothecation of the Truck as the entries were made in the R.T.O. Registration Book as well as in the record of the defendants and, therefore, the defendants very well knew of the charge of the appellant upon the Truck in question and as such the Appellant is entitled to recover the sale proceeds from the defendants.

2.2 It is the contention of the plaintiff-appellant that the trial Court ought to have appreciated that the dues of the defendants do not have precedent and/or priority over the dues of the appellant as the appellant is a secured creditor. It is also contended that the appellant is governed by the provisions of State Financial Corporation Act, 1951. It is contended that Section 46B of the State Financial Corporation Act, 1951 provides over-riding effect over all other Acts, Rules and Regulations which are contrary to the State Financial Corporation Act, 1951 and, therefore also, the plaintiff- appellant is entitled to recover the sale proceeds from the defendants.

2.3 it is also contended that the lower Court ought to have appreciated that dues of the appellant can also be recovered as an arrear of land revenue by virtue of provisions of Gujarat Public Money (Recovery of Dues Act, 1979 and thereby under Section 137 of the Bombay Land Revenue Code recovery of arrears of land can be made. It is contended that the defendants have also invoked the same provisions of Section 137 of the Bombay Land Revenue Code for recovery of their dues as arrears of land revenue. It is contended that under the circumstances, the defendants cannot have priority over the sale proceeds of the hypothecated truck over the dues of the appellant as the appellant has first charge on the truck in question. According to the plaintiff- appellant, provisions of Section 137 of the Bombay Land Revenue Code is not available to the respondents for recovery of their dues considering the provisions of Bombay Motor Vehicles Tax Act.

2.4 It is also contended that the trial Court has failed to appreciate the facts that the charge of the appellant over the truck in question is not released by auction held by the defendants so long as the appellant is not paid sale proceeds and the charge continues on the truck in question. It is also contended that the trial Court has misread the provisions of Section 12 of the Bombay Vehicle Tax Act and the provisions of the Bombay Land Revenue Code.

2.5 It is also contended that the trial Court has materially err