SUBRAMONIA PILLAI Vs. KUMARA PILLAIı

JUDGEMENT

(1.) A mortgagee of 62 cents of property comprised in Sy. No. 17 of Vanchiyoor Village covered by a mortgage deed dated 19-11-1112 executed by the first respondent herein in favour of his sister, the mother of the petitioner herein, seeks to quash Ext. P3 order of the second respondent Tribunal constituted under the Kerala Debt Relief Act (Act 17 of 1977), here-in-after called 'the Act', and Ext. P5 appellate order passed by the third respondent, Revenue Divisional Officer, Trivandrum, by issue of a writ of certiorari for the various grounds stated in the petition.

(2.) The first respondent who was employed abroad came to India in the year 1973 and instituted O. S. No. 67 of 1975 for a declaration of his title in respect of 4 items of properties including the property involved in this petition and also for recovery of possession before the Sub-Court, Trivandrum. He contended in that suit that the debt due under the mortgage in question was paid back to the mortgagee and thereafter there was a further entrustment of the mortgage property to the petitioner's mother. The suit was resisted by the petitioner mainly contending that the mortgage in question was extinguished being barred by limitation and there was no entrustment as alleged. The said suit was said to have been decreed in favour of the first respondent declaring his title over all the four items. But the question whether the mortgage was barred by limitation was not considered as it was not a suit for redemption, although the plea of the first respondent that he has discharged the mortgage debt and thereafter entrusted the property to the mother of the petitioner was rejected. Ext. P6 is said to be the judgment of the Trial Court and Ext. P7, the judgment of the appellate court. Third defendant is said to have filed a Second Appeal which is pending before this Court.

(3.) It was after the disposal of the said suit, the first respondent filed an application before the 2nd respondent under S.3 and 4 of the Act for reconveyance of the property after declaring that the debt has become extinguished. This application was resisted by the present petitioner on the ground that the 1st respondent is not a debtor coming within the definition of debtor under the Act, that the mortgage has become barred by limitation and therefore there was no debtor creditor relationship subsisting on the date when the Act came into force, and that the petitioner herein has effected substantial improvements to the value of more than Rs. 1 lakh.