THIMMAPPA A H Vs. T H RAMIAH

JUDGEMENT

(1.) Differring from the view expressed by a Division Bench of this Court in Goudappagouda Thimmappa Gouda Patil v The Sub-Divisional Magistrate, Bailhongal and another (W.A. 1212 of 1979 DD 21-1-1980) the Division Bench consisting of Hon'ble the Chief Justice and K S.B.J., has referred the following question to a larger Bench :

(2.) We have heard the learned Counsel appearing on both sides.

(3.) In W.A.No, 520/1985, the appellant sold the land bearing S.No. 18/2, measuring 4 acres one guntaof Goravankal village, Hosadurga Taluk, under a registered sale deed dated 9-8-1961 for a sum of Rs. 3,000/- to the respondents 2 and 3. On the coming into force of the Karnataka Debt Relief Act, 1976 (hereinafter referred to ss the'1976 Act') he filed an application before the Taluka Executive Magistrate, Hosadurga, contending that the transaction evidenced by the deed dated 9-8-1961 was in the nature of a mortgage and he was a 'debtor- within the meaning of the 1976 Act and therefore, the mortgage debt stood discharged and extinguished, hence the mortgage is deemed to have been redeemed; therefore the property should be put in possession of the applicant. The application was resisted by respondents 1 and 2. The Taluka Executive Magistrate by the order dated 28th October 1980 declared that the transaction evidenced by the document dated 9-8-1961 was a transaction of mortgage because it was not recited in the document that the transaction was and the consideration paid was far less than the actual value of the land. Aggrieved by the aforesaid order of the Taluka Executive Magistrate, respondents 1 and 2 preferred W.P. No. 20854/ 1980, The learned Single Judge by the order dated 22nd January 1985 allowed the petition and quashed the order of the Taluka Executive Magistrate. One of the reasons for quashing the order of the Taluka Executive Magistrate was that the transaction evidenced by the document was a sale out and out ; that the Taluka Executive Magistrate had no jurisdiction to hold that the transaction was not a sale out and out that it was only a it is against this order, W A. No. 520/1985 is filed.