M. P. CHANDRAKANTARAJ, J. ( 1 ) PETITIONER is one abdul sanaulla, who claims to be the purchaser of property bearing municipal No. (old) 12/3 and 12/3b-new No. 12:3-2 and bounded on the east by muni huchappa 's site, on the west by calendar factory, on the north by road and on the south by muni huchappa's site; having purchased the same from one zaheerabi, who in turn, had purchased the said property from one ramakrishnappa son of mayanna gowda under a sale deed executed on November 30,1970. She has questioned the legality and correctness of the order passed by the taluka executive magistrate, Bangalore north taluk in case No. Dra 26/1982-83 in exercise of the powers conferred on him by Karnataka debt relkf Act, 1976 on an application filed by one lingarnma @ sharadamma wife of late ramakrishnappa of karithim- manahally, Mysore road, Bangalore. ( 2 ) IN the said case, respondent was cited as zaheerabi wife of alia baksh. As the case number indicates, the application must have been presented in the year 1982 before the taluka executive magistrate. By the time the application was presented, the property had been sold as evidenced by Annexure 'c' in favour of saltaulla by zaheerabi. That document has been registered on 5-4-1982. Taluka magistrate issued notice to zaheerabi, who did not appear before the taluka magistrate. A non- bailable warrant issued was also returned without due execution with the endorsement that the person by that name is not residing at the address furnished. In that circumstance, an ex-parte order has been made on 31-5-1985 holding that the sale deed executed by ramakrishnappa in favour of zaheerabi is in fact a deed of mortgage and not a sale. ( 3 ) APPARENTLY that the petitioner had no notice as he was never a party before the taluka magistrate. The application appears to have been made on 2-3-1983 by the said lingamma @ sharadamma long after the sale deed in favour of the petitioner sanaulla. Therefore, taluka magistrate was in error in issuing notice to the wrong person. ( 4 ) EVEN otherwise, he has observed that there was an agreement to reconvey the property between vendor ramakrishnappa and zabeerabi. Some form of agreement is found in the records. But it is separate and distinct from the instrument of sale under which the property was sold to zaheerabi. ( 4 ) EVEN otherwise, he has observed that there was an agreement to reconvey the property between vendor ramakrishnappa and zabeerabi. Some form of agreement is found in the records. But it is separate and distinct from the instrument of sale under which the property was sold to zaheerabi. As the law stands today, unless the very document evidencing the sale provides for the reconveyance, the sale cannot be held to be mortgage by conditions sale. ( 5 ) ON these two accounts, the order is clearly not sustainable in law. The taluka magistrate should have taken the trouble to investigate as to who is the owner of the property in question on the date of application by the said lingamma. He cannot merely go by the sale deed and the agreement under which she claimed reconveyance. The property had in the meanwhile been transferred to third party. That third party would be a necessary party to the proceeding. Therefore, the order at Annexure-C is clearly erroneous and without the authority of law and in violation of rules of natural justice. As such, it is quashed. Though respondent 3 is represented, her counsel is not present. Therefore, she is placed ex-parte and this order is made ex-parte the 3rd respondent. ( 6 ) PETITION is allowed. Rule will issue and be made absolute in terms above. --- *** --- .