H. N. TILHARI, J. ( 1 ) THIS petition under Articles 226 and 227 of the Constitution of India arises from the order dated 23-2-1993 passed by the 1st respondent - The Deputy Commissioner, Belgaum District, Belgaum, in No. RB. KDR. RA. 1/92-93, whereby the Deputy Commissioner had set aside the order dated 9-7-1992 passed by the Taluk Executive Magistrate, Gokak, in the matter of proceedings under Section 5 of the Karnataka Debt Relief Act, 1980. The Taluk Executive Magistrate rejected the application on the ground that the debtor has not appeared before him and held that the applicant before him failed to make out a case that he is a debtor. ( 2 ) FEELING aggrieved from the order dated 9-7-1992 of the Taluk Executive Magistrate the respondent filed appeal before the Deputy Commissioner, Belgaum. The Deputy Commissioner observed that it is an undisputed fact that the applicant before him i. e. , the father of respondents 3 to 5 borrowed a sum of Rs. 2,000/- sometime in the year 1969, in lieu of the said transaction whereunder he had mortgaged the disputed land in favour of the respondent i. e. writ petitioner herein. He observed that the question before him is whether the petitioner before him i. e. , the father of respondents 3 to 6 were entitled to the reliefs. The Deputy Commissioner opined that the Certificate of income issued by the Taluk Executive Magistrate to the effect that the claimant before him belonging to the weaker sections of people within the meaning of the Karnataka Debt Relief Act and the certificate did not hold good. He held that the burden was on the creditor to prove that the petitioner before the Deputy Commissioner was not entitled to the relief, which burden the creditor has failed to discharge and so in view of the certificate issued by the Taluk Executive Magistrate, it held that the petitioner before it i. e. the father of respondents 3 to 6 was entitled to the reliefs. So he allowed the application and directed the creditor, who was respondent before it, whereby the land bearing S. No. 57/2 of Patagundi village in Gokak Taluk belonging to the petitioner and which has been under mortgage of the respondent should be restored back to the petitioner. So he allowed the application and directed the creditor, who was respondent before it, whereby the land bearing S. No. 57/2 of Patagundi village in Gokak Taluk belonging to the petitioner and which has been under mortgage of the respondent should be restored back to the petitioner. ( 3 ) FEELING aggrieved by the order dated 23-2-1993 passed by the Deputy Commissioner, Belgaum, the creditor has come up before this Court by way of writ petition under Arts. 226 and 227 of the Constitution of India. ( 4 ) I have heard Sri N. S. Bhat, holding brief for Sri R. B. Deshpande, learned Counsel for the petitioner, Sri. Lohit Anand, holding brief for Sri Jayakumar S. Patil, learned Counsel for respondents 4 to 6 and Sri. V. Jayaram, learned Government Advocate for respondents 1 and 2. ( 5 ) THE learned Counsel for respondents 4 to 6 contended that the debtor is entitled to move under Section 5 of the Karnataka Debt Relief Act, 1980 for direction from the Assistant Commissioner to the creditor to grant reliefs mentioned in Section 5 (2) (b) of the Karnataka Debt Relief Act, 1980. He submitted that in view of the provisions of Section 6, the burden was on the creditor to prove that a person moving the application under Section 5 is not a debtor and therefore there was no illegality in the order of the Deputy Commissioner. ( 6 ) THE learned Counsel for respondents has raised one more contention that really the revisional authority without jurisdiction has proceeded as Court of appeal. He submitted that in the earlier Writ Petition No. 18141/87 decided on 14th June, 1990, this Court had given direction that the creditor should be given opportunity to cross-examine before the matter decided and a certificate by itself is not taken to be the conclusive proof. ( 7 ) I have applied my mind to the contentions raised by the learned Counsels appearing of the parties. ( 8 ) IT is only a debtor, who is entitled to move under Section 5 of the Karnataka Debt Relief Act, 1980. ( 7 ) I have applied my mind to the contentions raised by the learned Counsels appearing of the parties. ( 8 ) IT is only a debtor, who is entitled to move under Section 5 of the Karnataka Debt Relief Act, 1980. Section 5 (1) provides that a debtor referred to in clause (1) of Section 3, may (on or before 31st December 1981) make an application to the Assistant Commissioner having jurisdiction over the area within which the mortgaged property is situate for an order releasing the mortgaged property and for the grant of a certificate of redemption. Section 5 (2) (a) provides that on receipt of such an application and after such enquiry as he considers necessary, the Assistant Commissioner shall pass an order releasing the mortgaged property and grant a certificate of redemption in the prescribed form which shall, notwithstanding anything contained in any law be admissible as evidence of such redemption in any proceeding before any Court or other authority. Section 5 (2) (b) provides that the Assistant Commissioner shall also direct the creditor to deliver possession of the mortgaged property to the debtor on or before the date specified in the order if the debtor is not already in possession of the mortgaged property and to produce on or before the date specified in the order, the mortgaged deed or other document and on such production the Assistant Commissioner shall make an endorsement of redemption on the mortgage deed or other document and forward a copy of the said endorsement to the concerned Sub-Registrar who shall, notwithstanding anything contained in any other law register the same. Section 5 (2) (3) provides that pending orders under clause (a) of sub-section (2), no creditor shall transfer or otherwise assign his interest in or exercise his right of foreclosure in respect of the property mortgaged by the debtor or his surety. Section 6 is very important section in this regard, which provides as to on whom the burden of proof lies. It will be appropriate to refer and quote Section 6 of the Karnataka Debt Relief Act, 1980, which reads as under :burden of proof etc. Section 6 is very important section in this regard, which provides as to on whom the burden of proof lies. It will be appropriate to refer and quote Section 6 of the Karnataka Debt Relief Act, 1980, which reads as under :burden of proof etc. , (1) If in any suit or other proceeding in a Court a question arises whether a party thereto is a debtor under this Act, the Court trying the suit or other proceeding shall frame a preliminary issue, as to whether such person is not a debtor under this Act and shall decide it before other issues are considered. Sub-section (2) of Section 6 provides that "notwithstanding anything in any law, the burden of proving that a person is not a debtor under this Act shall be on the creditor. " ( 9 ) A reading of this section per se reveals that if the creditor challenges the identity of the person making application to be a debtor and alleges that he is not a debtor, that question has to be decided and the burden of proving that the person moving the application is not a debtor is lie on the creditor. Thus it is the creditor on whom the burden lies prove the applicant is not a debtor under and for the purpose of this Act. It will be appropriate at this juncture to refer to the definition clause. Section 2 (6) reads as follows;"debtor" means a person who is; (i) a landless agricultural labourer; or (ii) a person belonging to the weaker section of the people; or (iii) a small farmer;and from whom a debt is due. ( 10 ) IN order to examine whether a person is a debtor or not, we have to look into that the person concerned belongs to either of the categories and that debt must be due on him. The expression "weaker section of people" has been defined in sub-section (11) of Section 2 of the Karnataka Debt Relief Act, 1980. ( 10 ) IN order to examine whether a person is a debtor or not, we have to look into that the person concerned belongs to either of the categories and that debt must be due on him. The expression "weaker section of people" has been defined in sub-section (11) of Section 2 of the Karnataka Debt Relief Act, 1980. "weaker section of people" means persons whose annual income from all sources does not exceed four thousand and eight hundred rupees, provided that a person shall not be deemed to belong to the weaker section of the people if; (1) he or his family has in both the two years immediately preceding the first day of April, 1979, been assessed to property or house tax in respect of buildings or lands, other than agricultural lands, under the Karnataka Municipal Corporation Act, 1976 (Karnataka Act 14 of 1977), the Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964), the Karnataka Village Panchayats and Local Boards Act, 1959 (Karnataka Act 10 of 1959) or any law governing the municipal or local bodies anywhere in India provided that the aggregate annual rateable value of such buildings or land whether let out or in the occupation of the owner, is not less than two thousand four hundred rupees; or (ii) he and members of his family own immovable property anywhere in India the market value of which is not less than ten thousand rupees. ( 11 ) THE burden is on the creditor to prove that the applicant is not a debtor within the meaning of Section 5, he has to establish either of the two things. That the debtor is not a landless agricultural labourer or that the debtor does not belong to the weaker section of the people nor a small farmer and to show that a person moving the application does not belong to the weaker section of the people, he has to establish by positive evidence that the income of such person exceeds the limit of four thousand eight hundred or he may prove a case under proviso to Section 2 (1) of the Act. The burden of proof has been placed on the creditor to establish it. No doubt when the creditor has produced some evidence, onus may shift on the applicant to produce some evidence oral or otherwise to prove his position. This is the position of law. The burden of proof has been placed on the creditor to establish it. No doubt when the creditor has produced some evidence, onus may shift on the applicant to produce some evidence oral or otherwise to prove his position. This is the position of law. ( 12 ) IT appears that the Taluk Executive Magistrate, who comes within the framework of the Assistant Commissioner ought to have framed the issue, fixed the case for evidence giving opportunity to the parties to produce evidence. No issue in this regard appears to have been framed by the Taluk Executive Magistrate. This was an illegality committed by the Taluk Executive Magistrate. If the creditor has raised objection that the applicant before the Taluk Executive Magistrate did not come within the purview of debtor, it was his duty to have framed the issue whether the creditor proves that the applicant is not a debtor within the meaning of the Karnataka Debt Relief Act, 1980. It appears that the Taluk Executive Magistrate had not applied his mind to the provisions of Section 6 of the Karnataka Debt Relief Act, 1980. Section 6 provides that the Court trying the suit or other proceeding shall frame a preliminary issue as to whether such person is not a debtor under this Act. This obligatory duty has not been followed by the Assistant Commissioner i. e. , Taluk Executive Magistrate. No doubt there was illegality as such the revisional Court had set aside the order of the Taluk Executive Magistrate and after framing the issue the revisional Court should have remanded the case for trial of that preliminary issue giving opportunity to the parties to lead evidence. The non-framing of the issue by the Assistant Commissioner as well as Deputy Commissioner and failure to remand the case to the Assistant Commissioner for decision afresh of the case according to law appear to have resulted in irregular and illegal exercise of power having tendency to cause injustice. No doubt burden is on the creditor to prove that the applicant under Section 5 of the K. D. R. Act, is not a debtor. The applicant is expected to state on oath that he belongs to the weaker section of the people and that his annual income is less than what is prescribed under the Act i. e. , rupees four thousand eight hundred. The applicant is expected to state on oath that he belongs to the weaker section of the people and that his annual income is less than what is prescribed under the Act i. e. , rupees four thousand eight hundred. There being no issue framed, the applicant himself did not appear. In this view of the matter, I find the entire proceedings are vitiated by error of law amounting to illegal exercise of jurisdiction vested in it. Both orders of the Taluk Executive Magistrate and the Appellate Authority have to be quashed and the matter remanded for decision afresh. As the matter has been a old one pending since 1981, it is directed that the Taluk Executive Magistrate will expeditiously decide the matter after framing the issue and after giving opportunity to both parties to lead evidence as well cross-examine the witnesses. ( 13 ) THE writ petition is allowed and the impugned orders dated 9-7-1992 (Annexure D) and dated 23-2-1993 (Annexure E) passed by the Taluk Executive Magistrate, Gokak and the Deputy Commissioner, Belgaum, respectively are hereby quashed. ( 14 ) THE Assistant Commissioner Taluk Executive Magistrate concerned is hereby directed to decide the matter keeping in view the provisions of Sections 5, 6 and 11 of the K. D. R. Act, 1980 and the observations made above and dispose of the application expeditiously according to law at the earliest in every case not more than nine months' period from the date of the communication of this order by the parties or by this Court whichever is earliest. ( 15 ) LET a writ of mandamus be issued to respondents Nos. 1 and 2 to the above effect. Costs of this petition are made easy. --- *** --- .