BHIMRAO TUKARAM Vs. SUB DIVL MAGISTRATE BELGAUM

JUDGEMENT

(1.) In these writ petitions, under Art. 226(1) (b) and (c) of the Constitution, the petitioners have challenged the validity of the order passed by the Sub-Divisional Magistrate, Belgaum Sub-Division, Belgaum, in No. KDR. HKR. 517|76, dated 28-1-1977 allowing the application filed by the 2nd respondent under S. 4 of the Karnataka Debt Relief Act. 1976 (hereinafter referred to as 'the Act.)

(2.) Out of the two lands in question, one land bearing Sy. No: 222 6 of Matiwade village was mortgaged to the petitioner in W. P. No. 1954|77 and the other land bearing Sy. No. 222|3 of the same village, according to the case of respondents 2 and 3, was mortgaged in favour of the petitioner in W.P. No. 1957 of 1977. In respect of these two mortgages, the 2nd respondent made an application under S. 4 of the Act for discharge of the mortgage debts and for delivery of possession of the lands in question. The Sub-Divisional Magistrate recorded the joint statement of respondents Nos 2 and 3 and separate statements of the petitioners. Thereafter, by the impugned order, the Sub-Divisional Magistrate has allowed the application and has ordered for delivery of possession of the lands in question to respondents 2 and 3.

(3.) Sri W. K. Joshi, the learned Counsel appearing for the petitioners in both the writ petitions, submitted that the application filed under Sec. 4 of the Act, was not the one filed by respondent No. 3 who was the owner and mortgagor of the lands in question but it was filed by respondent No. 2, who is the wife of respondent No. 3. The learned Counsel further submitted that it is the person who has mortgaged the lands in question or his successor in interest, namely, the heirs or the purchaser of equity of redemption alone could file the application and not any other person and the wife of respondent No. 3 cannot be said to have title to the lands in question during the lifetime of her husband and as such, the entire proceeding is vitiated. He also further submitted that the Sub-Divisional Magistrate has not held an enquiry in accordance with law and has also not recorded the finding as to whether respondent- 3 can be said to be the debtor within" the meaning of the Act.