APPA SHIDDA VANJOLI Vs. TALUK EXECUTIVE MAGISTRATE

JUDGEMENT

(1.) In this petition under Art 226 of the Constitution, the petitioners have challenged the correctness of the order passed by the Taluka Executive Magistrate, Chikodi, in No. DRA. SR. 351/77 dated 5-9-1977, allowing the application filed by the 2nd Respondent under S.4(f) of the Karnataka, Debt Relief Act, 1976 (hereinafter referred to as 'the Act') and further directing the petitioners to hand over possession of the land bearing Sy. No.(old) 497/4, (new) No. 175/4 of Appachiwadi village, Taluk Chikodi.

(2.) It is not in dispute that the land in question was sold on 13-8-1937 for Rs. 7,000 by the father of the 2nd respondent to the 1st petitioner, who in turn has gifted the said land to the 2nd petitioner under a registered gift deed dated 11-2-49. This transaction of sale was challenged under the Bombay Agricultural Debtors' Relief Act in a proceeding bearing No. DA. 5387/45 before the II Joint Civil Judge, Chikodi. After enquiring into that application, the II Jt. Civil Judge, Chikodi, by the order dated 20-8-51 rejected the application filed under the Bombay Agricultural Debtors' Act (Ext-C). The effect of the finding recorded by the II Jt. Civil Judge, Chikodi, was that the transaction evidenced by the document dated 13-8-1937 was a sale and not a mortgage.

(3.) Thereafter, on coming into force of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as 'the Act') the 2nd respondent has filed an application under S.4(f) of the Act. The Taluka Executive Magistrate has held that the said transaction is one of mortgage on the ground that out of the entire consideration of Rs.7000 only Rs.4,600 was paid and the remaining Rs.2,400 was adjusted towards the interest that had accrued from the three loans raised by the father of the 2nd respondent. The Taluka Executive Magistrate was of the opinion that there was a relationship of debtor and creditor, and as such, the transaction was one of mortgage. To say the least the reissuing of the Taluka Executive Magistrate cannot at all be sustained. Merely because a part of the consideration was pa''d by way of an adjustment of the previous loans, the transaction of sale does not cease to be a sale. Added to this as already pointed out the transaction in question was held to be a sale in the previous proceeding. Further, it was not open for the Taluka Executive Magistrate to hold the transaction of sale as mortgage. The jurisdiction conferred upon the Taluka Executive Magisrate under the Act is very much limited. The jurisdiction of the Taluka Executive Magistrate does not extend to cases in which the transactions are evidenced by sale deeds to require into the nature of such transactions and to hold that it is a mortgage and not a sale. Once, it is ound that the deed evidencing the transaction is apparently a sale deed, the Taluka Executive Magistrate ceases to have jurisdiction to deal with the matter and it will not be open for him to go behind the document and enquire into the nature of the transaction as he does not possess any such jurisdiction.