SHIVALINGESHWAR OIL MILL Vs. CHANAVEERAPPA BASALINGAPPA

JUDGEMENT

(1.) THIS revision by the judgment debtor Shivalingeshwara Oil Mill, Haveri, represented by its Managing Partner, is directed against the executing Court's order dated 31-3-1997 passed in Execution No. 6/1991 rejecting its contention that it is a "debtor" within the meaning of the Karnataka Debt Relief Act, 1980 (Act of 1980) and, therefore, its liability under the money decree in execution is deemed to have been discharged by virtue of Section 3 of the Act.

(2.) ). Certain undisputed facts giving rise to this revision are that O. S. No. 29/1978 for recovery of Rs. 26,635/- with interest was filed by the respondent (hereinafter referred to as "the decree-holder") against the petitioner-firm (hereinafter referred to as "the judgment debtor" ). That suit was decreed by the trial Court on the basis of compromise between the parties making the decree amount payable in three equal instalments. The first instalment was paid by the judgment debtor on 15-2-1979. He defaulted in payment of the balance amount under the decree. Therefore, execution of the decree for the balance amount was taken out by the decree-holder in Execution No. 6/1991 before the Court below. The judgment debtor firm objected to execution of the decree against it on the plea, inter alia, that it is a 'debtor' under the Act of 1980 and, therefore, its liability under the decree was discharged by virtue of the provisions thereof.

(3.) AN enquiry was conducted by the executing court on the judgment debtor's plea of its being a debtor under the Act of 1980. In a suit or other proceeding in a Court when a question arises whether a party thereto is a debtor under the Act, Section 6 (1) thereof casts a duty on the trial court to frame a preliminary issue as to whether any such person is not a debtor under the Act and to decide it before other questions are considered. Sub-section (2) of Section 6 casts the burden on the decree-holder of proving that such a person is not a 'debtor' under the Act. To discharge the burden so placed by Section 6 (2) of the Act, the decree-holder gave his evidence as P. W. 1 and examined one Shivabasappa Banappanavar as P. W. 2. Documents Exs. P-1 to P-10 were also produced in evidence to support their statements at the trial.