GHOUSE MOHADDIN Vs. SUB DIV MAG BELGAUM

JUDGEMENT

(1.) In this petition under Arts. 226 and 227 of the Constitution, the petitioner who claims to be in possession of the land in question bearing Sy. No. 187/2 of Bagewadi village measuring 2 acres 8 guntas in pursuance of an agreement of sale executed by the second respondent in his favour, has challenged the order dated 12-10-1976 passed by the Sub Divisional Magistrate, Belgaum, in No. KDR/BGM/ 202/76 allowing the application filed by the 2nd respondent under S. 4 of the Karnataka Debt Relief Act (hereinafter referred to as the Act) by holding that the transaction is one of mortgage and further directing that the petitioner should hand over possession of the land in question to the 2nd respondent.

(2.) The case of the petitioner is that in PUrsuance of the aforesaid agreement of sale dated 14 6 1973 executed by the second respondent in favour of the petitioner agreeing to sell the land in question for Rs. 3,400, the second respondent received Rs. 200 as advance money and put the petitioner in possession; of the land in question. In pursuance of the said document, he has filed a suit O.S.No. 230/76 in the Court of the II Additional Munsiff, Belgaum for specific performance of the agreement of sale and the said suit is still pending and as such it was contended that it was not open for the Sub- Divisional Magistrate to proceed with the case when the very document was the subject matter of a regular suit before the competent Cottrt. It was also further submitted that the petitioner brought to the notice of the Sub-Divisional Magistrate all these facts by filing his statement of objections to the application filed by the second respondent and in spite of this, the Sub-Divisional Magistrate has passed the impugned order.

(3.) In view of the fact that there was a suit filed by the petitioner for specific performance of the agreement of sale dated 14- 6-1973, the Sub-Divisional Magistrate ought not to have proceeded with the application filed by the second respondent. It is not in dispute that the second respondent has also based his application under S. 4 of the Act on the aforesaid agreement of sale only. That being so, that Sub-Divisional Magistrate ought not to have proceeded with the enquiry, as the finding regarding the nature of transaction to be recorded by Civil Court in the aforesaid suit will not only be binding upon the parties, it will also be binding upon the authority functioning under the Act. The authority functioning under the Act does not enjoy the exclusive jurisdiction to declare that the debt falling under the purview of the Act. incurred by a debtor as defined in the Act is extinguished. The jurisdiction of the Civil Court is not excluded either by an express provision or by necessary implication. Thus, the findings reco ded by a Civil Court on the questions such as the nature of the transaction, the liability being a debt and the person being a debtor under the Act, are not only binding on the parties but also on the authority functioning under the Act. The Sub Divisional Magistrate has also not given any reason for coming to the conclusion that the transaction evidenced by the document dated 14 6 1973 was one of mortgage except stating that the transaction amounts to a mortgage. Thus, the order is not a speaking order. Further, the order is also based on the grourd that the petitioner has failed to prove that the second respondent was not a small farmer. It is open the 2nd respondent, who has approached the Sub-Divisional Magistrate under S. 4 of the Act, to prove that he was a debtor within the meaning of the Act and as such, was entitled for relief. Thus, taking into consideration all these grounds, the impugned order passed by the Sub Divisional Magistrate cannot be sustained. Consequently, the impugned order bearing No. KDR.BGM. 202/76, dated 12-10-76 passed by the Sub Divisional Magistrate, Belgaum, is hereby quashed. The matter now stands remitted to the Sub Divisional Magistrate, Belgaum with a direction to take the application of the 2nd respondent on file and to await the decision of the Civil Court in O.S.No. 230/76 pending on the file of the II Addl. Munsiff, Belgaum, and to proceed to decide the case afresh in accordance with law and after the decision of the Civil Court, and after affording an opportunity to the parties to adduce evidence and after hearing them. It has already been pointed out that any decision rendered by the Civil Court in respect of the nature of the document in question etc., will be binding upon the Sub Divisional Magistrate and he has to proceed on the basis of the findings recorded by the Civil Court.