TAHSILDAR, ANEKAL v. CHILAKAMMA — 1983 DIGILAW 105 (KAR)

V. S. MALIMATH, J. ( 1 ) THE Tahsildar of Anekal and Sri munivenkatappa, have, in this appeal, challenged the order of the learned single judge dated 26th Sept. 1980 passed in WP 2022/79. ( 2 ) THE undisputed facts which are relevant for the purpose of this appeal may briefly be stated as follows :the second appellant executed an usufructuary mortgage deed oh the 12th of November 1943 in favour of the second resondent, mortgaging lands bearing S. Nos. 11, 16/2, 18/2 and 207 of Banneraghatta village, anekal Taluk, in respect of the loan of Rs. 1,000 borrowed by him. On the 8th of April 1956 the second respondent assigned her interest as mortgagee in favour of the first respondent. The second appellant filed O. S. 706/1950-51 in the Court of the Second Munsiff, Bangalore, for redemption of the mortgage against the second respondent and one Narayanappa'. That suit was decreed on the 30th of June 1952 and a preliminary decree was passed fixing the date for payment of the amount found due under the mortgage. The amount due under the mortgage was not paid and no further steps were taken in that suit. The assignment made on the 8th of April 1956 by the second respondent was after the said suit was decreed. ( 3 ) AFTER the Karnataka Debt relief Act, 1976 (Karnataka Act 25 of 1976), (hereinafter referred to as the act), came into force, the second appellant made an application before the first appellant under S. 4 (f) of the Act praying for an order directing the first respondent to put him in possession of the mortgaged properties, on the ground that the mortgage stood redeemed by the operation of S. 4 (f) of the Act. The second appellant claimed that he is a debtor as defined in S. 3 (c) of the Act as belonging to the weaker sections of the people. It is his case that notwithstanding the fad that a preliminary decree for redemption had been made in O. S. No. 706/50-51, the mortgage not having been redeemed, the same subsists, and that the liability thereunder is a debt as defined in S. 3 (b) of the Act. As the application of the second appellant was contested, the parties led evidence before the first appellant who had jurisdiction to entertain and decide the said application. As the application of the second appellant was contested, the parties led evidence before the first appellant who had jurisdiction to entertain and decide the said application. The first appellant made an order on 25-8-78 holding that the mortgage stands redeemed and directed delivery of possession of the mortgaged properties by the first respondent in favour of the second appellant. He also held that the second appellant belonged to weaker section of the people and he is therefore a debtor entitled to the protection under the Act. He further held that notwithstanding the existence of the preliminary decree for redemption the decretal amount is debt as defined in S. 3 (b) of the act. ( 4 ) THE first respondent challenged the aforesaid order of the first appellant in W. P. No. 2022/1979. The learned single judge has, by his order dated the 26-9-1980, allowed the said writ petition and quashed the impugned order of the first appellant-Magistrate, reserving liberty to the second appellant to approach the Munsiff for appropriate reliefs in O. S. No. 706/50-51. The learned single Judge has held that the first appellant-Magistrate had no jurisdiction to wipe out the liability created under the preliminary decree passed by the Civil Court even though the said liability amounts to debt as defined in S. 3 (b) of the Act. It is the said order of the learned single judge that is challenged in this appeal. ( 5 ) IT is clear from the preamble of the Act that it has been enacted to provide relief from indebtedness to small farmers, landless agricultural labourers and weaker sections of the people in the State of karnataka. S. 3 (b) of the Act defines 'debt' to mean any liability in cash or in kind whether decreed or not and includes any amount which is in substance a debt, but does not include arrears of taxes due to the central or the State Government or a local authority. S. 3 (c) of the Act defines debtor to mean (i) a small farmer, or (ii) a landless agricultural labourer or (iii) a person belonging to the weaker sections of the people. The expression 'landless agricultural labourer' has been defined in S. 3 (d) of the Act to mean a person who does not hold any land and whose principal means of livelihood is manual labour on land. The expression 'landless agricultural labourer' has been defined in S. 3 (d) of the Act to mean a person who does not hold any land and whose principal means of livelihood is manual labour on land. The expression 'small farmer' is defined in S. 3 (e) to mean a person who holds whether as owner, tenant, or mortgagee with possession or partly in one capacity and partly in another not more than one unit of land and who has no income from any source other than agriculture. The expression 'weaker sections of the people is defined in S. 3 (g) to mean persons not being small farmers or landless agricultural labourers whose annual income from all sources does not exceed Rs. 2400. The Act has been enacted to grant certain reliefs to debtors as defined in S. 3 (c), and detailed provisions in this behalf have been incorporated in S. 4 of the act, which may be conveniently extracted as follows : "4. 2400. The Act has been enacted to grant certain reliefs to debtors as defined in S. 3 (c), and detailed provisions in this behalf have been incorporated in S. 4 of the act, which may be conveniently extracted as follows : "4. Relief from Indebtedness : notwithstanding anything in any law for the time being in force or in any contract or instrument having force by virtue of any such law and save as otherwise expressly provided in this Act with effect from the date of commencement of this section,- (a) every debt advanced before the commencement of this section including the amount of interest, if any, payable by the debtor to the creditor shall be deemed to be wholly discharged; (b) no civil Court shall entertain any suit or proceeding against the debtor for the recovery of any amount of such debt including interest if any: provided that where a suit or proceeding is instituted jointly against the debtor and any other person nothing in this section shall apply to the maintainability of the suit or the proceeding in so far as it relates to such other person; (c) all suits and proceedings (including appeals, revisions, attachments or execution proceedings) pending on the said date against any debtor for the recovery of any such debt, shall abate : provided that nothing in this clause shall apply to the sale of (i) any moveable property held and concluded before the commencement of this sections; (ii) any immoveable property confirmed before such commencement; (d) every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a civil Court in respect of any such debt shall be released; (e) every moveable property pledged by a debtor shall stand released in favour of such debtor and the creditor shall be bound to return the same to the debter forthwith and where the creditor fails to do so, the debtor shall on application made to the sub-divisional Magistrate or any other executive Magistrate authorised by the State Government in this behalf having jurisdiction over the place where the debtor resides be entitled to the return of the same; (f) every mortgage executed by the debtor in favour of the creditor shall stand redeemed and the mortgaged property shall be released in favour of such debtor and where the creditor fails to do so, the Sub-Divisional magistrate or any other executive Magistrate authorised by the state Government in this behalf having jurisdiction over the place where the mortgaged property is situate may, suo-motu or on an application of the debtor and after such inquiry, as he may deem fit, put the debtor in possession of the mortgaged property. Explanation : Nothing in this section shall be construed as entitling any debtor for refund of any part of any debt already re- paid by him or recovered from him before the commencement of this section. S. 5 of the Act imposes certain obligations on the creditors to file statements before the concerned magistrates within the specified time. For the purpose of this case, it is enough to advert to the provisions of sub-sections (5) and (6) of S. 5 of the Act. Sub-sec. (5) provides that every creditor referred to in clause (f) of S. 4 shall within 45 days from the 1st day of March 1976 furnish to the Sub-Divisional Magistrate or the Executive magistrate as the case may be having jurisdiction over the area where such creditor ordinarily resides, a statement containing the names of all the debtors who have mortgaged properties to him, the full description of such properties, the amount advanced and due as on 21st Octr. 1975 and such other particulars as may be prescribed, and that on receipt of such statement the sub-Divisional Magistrate or the executive Magistrate as the case may be shall by order, determine which of the debtors are entitled to the relief under S. 4 and direct the creditor to make an endorsement of discharge on the mortgage deed and deliver the same to the debtor, and where such property is in the possession of the creditor, he shall deliver the same to the debtor and if the creditor fails to do so the Sub-Divisional magistrate or the Executive Magistrate as the case may be shall himself record the fact of discharge and issue a certificate to that effect to the debtor and also deliver possession of property to the debtor by using such force as may be necessary. Sub-sec. (6) provides that every order of the Sub - Divisional magistrate or the Executive magistrates as the case may be under this section shall be final. Sub-sec, (1) of S. 6 of the Act provides that any person failing to furnish the statement or to comply with the order made under s. 5 or otherwise contravening the provisions of S. 5 shall be liable to imprisonment for a term which shall not be less than three months hut which may. extend to one year and with fine which shall not be less than Rs. extend to one year and with fine which shall not be less than Rs. 1000 but which may extend to Rs. 5,000- s. 7 of the Act provides that notwithstanding anything in any law, in any suit or proceeding, the burden of proving that the debtor is not entitled to protection of this Act shall lie on the creditor. ( 6 ) IT is clear from the scheme of the Act, only persons who are debtors as defined in S. 3 (c) of the Act that are entitled to relief under the act. In this case, the learned single judge has affirmed the finding of the magistrate that the second appellant is a person belonging to the weaker sections of the people and is therefore a debtor as defined in S. 3 (c) of the Act. The learned single Judge has also affirmed the finding of the magistrate that notwithstanding the fact that a preliminary decree for redemption has been passed in O. S. 706/50-51, the 2nd appellant's liability thereunder is a debt as defined in S. 3 (b) of the Act. ( 7 ) THE learned single Judge has, however, quashed the order of the magistrate, holding that the Magisstrate functioning under the Act has no competence to extinguish the liability incurred under the decree passed by a Civil Court. The learned single Judge further holds that there is no provision in the Act to oust the jurisdiction of a Civil Court and conferring exclusive jurisdiction on the Taluka Magistrate to decide the questions arising under S. 4 (c) and (f) of the Act. ( 8 ) IT is clear from the scheme of S. 4 of the Act that relief from indebtedness is sought to be afforded to the debtors in respect of debts of different categories which have been classified into threee categories falling under clauses (a), (e) and (f ). The effect of clause (a) is to discharge every debt including interest advanced before the commencement of S. 4, clause (e) refers to debts involving pledging of moveable articles by the debtor. It declares that every moveable property pledged by the debtor shall stand released in favour of the debtor and imposes an obligation on the creditor to return the pledged article to the debtor immediately. It declares that every moveable property pledged by the debtor shall stand released in favour of the debtor and imposes an obligation on the creditor to return the pledged article to the debtor immediately. It also provides for enforcing the obligation of the creditor by providing that the debtor can make an application to the Magistrate for an appropriate order directing the creditor to deliver possession of the pledged article. Clause (f) of S. 4 deals with mortgaged lands. It prevides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed. It further imposes an obligation on the mortgagee-creditor of releasing of the mortgaged property in favour of the debtor. If there is a failure to discharge this obligation, the concerned magistrate may take action suo motu or the debtor-mortgagor may make an application to the magistrate for a direction to deliver possession of the mortgaged property to him. The Magistrate is empowered to make an order in this behalf after holding such enquiry as he deems fit, ( 9 ) WE shall first examine as to whether the conditions specified in clause (f) S. 4 are satisfied in this case for the purpose of granting relief to the debtor. We have already adverted to the fact that the learned single Judge has come to the conclusion that the second appellant is a debtor within the meaning of the act. The learned Single Judge has also held that notwithstanding the fact that a preliminary decree for redemption has been made in O. S. No. 706 of 1950-51, the liability thereunder is a debt as defined in S. 3 (b) of the Act. These findings have not been assailed before us. Clause (f) of S, 4 provides that every mortgage executed by the debtor in favour of the creditor shall stand redeemed. As the appellant is a debtor and as the transaction in question is a subsisting mortgage transaction, the same stands redeemed. The redemption so brought about is by the operation of the statute viz,, clause (f) of S. 4. The language of S. 4 (f) makes it clear that every mortgage executed by the debtor in favour of the creditor shall stand redeemed. The redemption so brought about is by the operation of the statute viz,, clause (f) of S. 4. The language of S. 4 (f) makes it clear that every mortgage executed by the debtor in favour of the creditor shall stand redeemed. The liability is extinguished and the mortgage stands redeemed by the operation of the statute, All that is required when a dispute arises, is as to whether the person claiming benefit is a debtor and as to whether there is a subsisting mortgage. We are therefore, clearly satisfied that the mortgage in this case which was subject matter of the decree in O. S. No. 706/50-51, stood statutorily redeemed and the mortgage debt stood statutorily discharged. The statute does not stop at extinguishing the debt and redeeming the mortgage. It further proceeds to impose a statutory obligation on the mortgagee-creditor, of delivering possession of the mortgaged property in favour of the mortgagor-debtor. If that statulory obligation is not discharged by the mortgagee creditor, jurisdiction has been conferred on the concerned Magistrate to enforce that, statutory obligation and secure possession of the mortgaged property in favour of the debtor. The concerned Magistrate may take action either suo-motu or on the application of the debtor in this behalf. It is therefore clear that so far as mortgage debts are concerned, S. 4 (f) is a complete code to grant adequate and full relief to the debtor under the Act. If the redemption of the mortgage is brought about by operation of S. 4 (f) of the Act, it logically follows that the statutory obligation to deliver possession imposed by by S. 4 (f) also gets automatically attracted. When such statutory obligation gets attracted under S. 4 (f), we fail to see how the further steps provided in S. 4 (f) for enforcing that liability cannot or should not be given effect to. The scheme of S. 4 (f) makes it clear that if the statutory obligation imposed on the mortgagee of delivering possession to the debtor is not discharged, the Magistrate can secure possession of the mortgaged property either suo-motu or on the application of the debtor. The question of the debtor who satisfies all the conditions being required to approach the Civil Court, does not arise. The question of the debtor who satisfies all the conditions being required to approach the Civil Court, does not arise. The same is the position where preliminary decree for redemption has been made and the process of redemption and delivery of possession has not become complete and the debt has not been extinguished, ( 10 ) SRI Krishnaiah, learned counsel for the first respondent, queried that if the Magistrate can grant relief, what should happen to the preliminary decree for redemption passed by the Civil Court in this case. A. s the statute has stepped in and has provided a special machinery for relieving a debtor of his indebtedness, the question of any of the parties going before the Civil Court seeking such relief, does not arise. So far as the debtor with whom we are concerned, though he is the decree-holder is not required to go the Civil Court, for taking further action in the matter. It is so because, he can avail of the effective remedy made available to him under S. 4 (f ). So far as the creditor who became the judgment-debtor in this case is concerned, the question of his approaching the Civil Court does not arise as there is nothing for him to enforce, the mortgage debt having been statutorily extinguished and the mortgage having been statutorily redeemed. On the facts of this case, it is therefore obvious that it is not necessary either for the decree-holder or for the judgment-debtor to approach the Civil Court for taking any further action in pursuance of the preliminary decree for redemption made in the case. As the special statute conferring benefits on debtors has created a special machinery for obtaining such benefits, it is obvious that they should have recourse to such machinary alone. ( 11 ) IT is also not possible for us to agree with the view taken by the learned single Judge that there is a likelihood of a conflict of decisions. We have already explained that in a case like this, where there is only a preliminary decree for redemption, nothing need be done to move the civil court for taking further action in the matter. The parties are expected only to approach the concerned magistrate for appropriate action under S. 4 (f) of the Act. We have already explained that in a case like this, where there is only a preliminary decree for redemption, nothing need be done to move the civil court for taking further action in the matter. The parties are expected only to approach the concerned magistrate for appropriate action under S. 4 (f) of the Act. That being the position, there could only be one decision by the Magistrate under S. 4 (f) and the question of a conflicting decision by the civil court cannot arise. ( 12 ) IT was next pointed out by sri Krishnaiah that specific provisions have been-made in the Act in regard to pending proceedings and in regard to fresh suits to be instituted after the corning into force of the act. He invited our attention to clause (b) of S. 4 which provides that no Civil Court shall entertain any suit or proceedings against the debtor for the recovery of any amount of such debt including interest, if any. This provision bars the Civil court from entertaining suits against debtors for recovering debts. Clause (c) of S. 4 provides that all suits and proceedings including appeals, revisions, attachments or execution proceedings pending on the said date, against any debtor for the recovery of any such debt, shall abate. Shri Krishnaiah submitted that it is only pending suits against the debtors for recovery of debts that abate and that suits instituted by the debtors against the creditors do not stand abated as there is no specific provision in the Act to that effect. It is no doubt true that S. 4 (c) of the Act only deals with suits pending on the relevant date as against a debtor. In this case, it is the debtor-mortgagor who instituted the suit for redemption of the mortgage against the mortgagee-creditor. It cannot, therefore, be said that this is a suit against the debtor which attracts the provisions of S. 4 (c) of the Act. We therefore, agree with the contention of Sri Krishnaiah that O. S. No, 706/ 50-51 does not stand abated by the operation of S. 4 (c) of the Act. It was submitted by Sri Krishnaiah that no provision in the Act governs O. S. No. 706 of 1950-51 filed by the mortgagor-debtor against the creditor, which was pending on the relevant date. It was submitted by Sri Krishnaiah that no provision in the Act governs O. S. No. 706 of 1950-51 filed by the mortgagor-debtor against the creditor, which was pending on the relevant date. He submitted that the further career of that suit not being affected in any manner by the provisions of the Act, all further steps have to be taken only in that suit. It is on that basis he contended that the learned Single judge was right in taking the view that the debtor can approach the civil Court in that suit and take the contention that he is a debtor and that the mortgage stands redeemed. ( 13 ) EVEN though clause (c) S. 4 does not govern the present case, it is not possible to take the view that the provisions of clause (c) of S. 4 are not attracted to the facts of the present case, merely because there is no reference to pending suits against creditors in S. 4 (c ). As all the conditions specified in S. 4 (c)of the Act are fulfilled in this case, the provisions of that section get attracted, though it is not expressly provided therein that it applies to pending suits for redemption. As already stated clause (f) S. 4 provides a machinery for enforcing the benefits conferred by the statute and therefore, it is that machinery alone which must be invoked by the parties for realising those benefits. ( 14 ) SRI Krishnaiah, learned Counsel for the first respondent, submitted that the decision of this Court reported in Veeranna Aradhya M. v. Jayamma (1) supports his case. He relied upon the following observations occuring in para-4 of the judgment of the learned single judge :" A decree made by a competent civil Court cannot be extinguished by a Magistrate functioning under the Act. The validity of a decree or any liability thereunder can be challenged by a judgment-debtor only in appeal or in execufion proceedings and cannot be challenged before a magistrate under the Act with limited jurisdiction. In this view, the application made by the petitioner for extinguishment of the decree debt was not maintainable. I therefore uphold the impugned order, though not for the reasons given by the magistrate, but for the stated reasons given by me and reject this writ petition at the preliminary hearing stage, without notice to the respondents. In this view, the application made by the petitioner for extinguishment of the decree debt was not maintainable. I therefore uphold the impugned order, though not for the reasons given by the magistrate, but for the stated reasons given by me and reject this writ petition at the preliminary hearing stage, without notice to the respondents. " this decision, no doubt, fully supports the contention of Sri Krishniah. It is observed in the judgment that a decree made by a competent civil Court cannot be extingushed by a Magistrate functioning under the act. No reasons are given for that conclusion. The pointed attention of the learned single judge was not drawn to the scheme of S. 4 of the Act. That was also not a case which attracted the provisions of S. 4. That writ petition was dismissed at the stage of preliminary hearing. No argument was addressed before the learned single judge to the effect that debts are extinguished by the operation of the statute and that, therefore, the question of the Magistrate extinguishing the liability created by the decree does not arise. Hence, with great respect it is not possible to agree with the view taken by the learned single judge in veeranna's case (1 ). ( 15 ) SRI Krishnaiah also relied upon the decision of this Court in ulavappa v. Sub-divisional Magistrate dharwar (1 ). It has been laid down in that case that if a serious question regarding tenancy arises for consideration in a matter arising under the act before the Magistrate, the appropriate course to be followed by him is to stay the proceedings before him and to await the decision of the land tribunal in regard to the status of the party. That decision has no bearing on the questions involved in the present case. ( 16 ) THE last decision cited by sri Krishnaiah is the one in Keshavlal v. Taluk Magistrate, Raibag (3 ). It has been laid down by the learned single judge in that case that the magistrate functioning under the Act with limited jurisdiction of granting relief to debtors as defined in the act, does not have the power of examining the validity or otherwise of the agreement to sell. That is not the question with which we are concerned in the present case. Hence, no assistance can be derived from that decision either. That is not the question with which we are concerned in the present case. Hence, no assistance can be derived from that decision either. ( 17 ) FOR the reasons stated above, this appeal is allowed, the order of the learned single judge dated 26-9-1980 in writ petition No. 2022 of 1979 between Chikkamma v. Tahsildar, anekkal, reported in (1981)1 Kar. L. J. 377 is set aside and the rule is discharged. No costs. --- *** --- .