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1989 DIGILAW 286 (KAR)

KHATUNBI v. DEPUTY COMMISSIONER, BIJAPUR

1989-08-22

H.G.BALAKRISHNA

body1989
BALAKRISHNA, J. ( 1 ) TWO substantial questions of law arose for consideration before the Tahsildar and taluk Executive Magistrate, Jamkhandi, and also before the Deputy Commissioner, bijapur They are whether the applicant before the Tahsildar was a debtor within the meaning of Section 2 (6) of the Karnataka debt. Relief Act and whether the transfer of the property in question was through the instrumentality of a sale or a mortgage. ( 2 ) THE findings of the Tahsildar are not only specific, but also supported by reasons. It is not necessary for me to decide whether or not the findings of the Tahsildar are just and proper. But what I am concerned with is the question whether the Deputy Commissioner in exercising the revision power under section 14 of the Act has acted in accordance with the requirements of law in disposing of the revision petition. It is in this revision petition filed under Section 14 of the act the petitioner had invoked the revision jurisdiction calling upon the Deputy Commissioner to satisfy himself as to the legality of the proceeding which took place before the Tahsildar. ( 3 ) AFTER going through the impugned order of the Deputy Commissioner under annexure-A, it is noticed that though in the narration of the facts the Deputy Commissioner has stated that the respondent has contended that the deed executed is a sale deed, the Deputy Commissioner has not troubled himself to probe into this question and give a specific finding as to whether or not the transaction is in the nature of a sale or a mortgage. However instead he has taken into consideration that the petitioner had sold another piece of land for a consideration of Rs. 20,000/- on 21-10-1976 when the Act came into force and that, therefore, the petitioner was not qualified to be a debtor. He has also observed that the transfer being the subject matter of the proceedings which had taken place anterior to the appointed date, he is in agreement with the tahsildar that the applicant is not entitled to the relief under the Act and has proceeded to dismiss the revision petition. ( 4 ) THE finding of the Deputy Commissioner obviously is a finding on the question whether the petitioner is a debtor within the meaning of the Act and his finding confirms the finding of the Tahsildar. ( 4 ) THE finding of the Deputy Commissioner obviously is a finding on the question whether the petitioner is a debtor within the meaning of the Act and his finding confirms the finding of the Tahsildar. However, the other point remains unanswered by the deputy Commissioner. While exercising the revision jurisdiction what is contemplated is that the authority should convince itself about the legality of the proceedings under revision. In order to convince himself about the legality of the proceedings, it cannot be gain said that the Deputy Commissioner should have considered not only whether the petitioner is a debtor within the meaning of the Act, but also whether the transaction in question is a sale or a mortgage as otherwise the satisfaction envisaged under Section 14 of the Act is not fulfilled. The impugned order of the Deputy Commissioner, in my opinion, is incomplete and suffers from a lacuna of non-determination of a substantial question of law. Failure to interpret a document in order to decide whether the transaction is a sale or a mortgage is an error of law apparent on the face of the record and it certainly relates to a jurisdictional error. Hence, I hold that the impugned order of the deputy Commissioner suffers from a material discrepancy inasmuch as it does not contain a specific finding on the question whether the transaction which took place on 23-6-1975 is a sale or a mortgage. ( 5 ) IN the result, for the foregoing reasons, the writ petition is allowed in part. The impugned order of the Deputy Commissioner under Annexure-A only is quashed. The case is remitted back to the Deputy Commis- sioner with a direction to hear the parties and dispose of the revision petition afresh on merits in accordance with law giving a specific finding on the following point within three months from the date of receipt of a copy of this order : "whether the transaction under the document executed on 23-6-1975 is a sale or a mortgage. " ( 6 ) THE office is directed to communicate a copy of this order to the Deputy Commissioner forthwith. Writ Petition allowed. --- *** --- .