SANKU Vs. R D O ALLEPPEY

JUDGEMENT

(1.) APPELLANTS are the mortgagees as per Ext. Pl usufructuary mortgage deed executed on 30-5-1964 for a mortgage sum of Rs. 300/ -. When the kerala Debt Relief Act, 1977 - Act 17 of 1977 (for short'the Act') came into force on 13-1-1977, the mortgagor applied under Sec. 4 of the Act for reconvenyance of mortgaged property on the premises that the mortgage stood redeemed with the commencement of the Act. Application of the mortgagor was allowed by the Tribunal constituted under the Act as per Ext. P4 order. Mortgagees challenged the order in an appeal before the Appellate Authority constituted under the Act. But Appellate Authority dismissed the appeal by Ext. P6 order. Thereupon, the mortgagees filed the Original Petition for a writ of certiorari under Article 226 of the Constitution for quashing Exts. P4 and P6. Learned single judge dismissed the Original Petition. Hence this appeal.

(2.) TWO contentions have been advanced by the appellants. First is that the mortgagor is not entitled to the benefits of the Act inasmuch as he is not a debtor as defined in Sec. 2 (4) of the Act. Second conditions, as the mortgagees have effected value of improvements on the mortgaged property, no re conveyance is possible without payment of the entire value of improvements.

(3.) NOR can the mortgagees insist that before re conveyance of the property the value of improvements should be paid as a condition precedent on the principles envisaged in Act 29 of 1958 because Sec. 3 (f) of the Act contains a statutory obligation cast on the mortgagees to deliver possession of the mortgaged property to the debtor. The said obligation is also uncircumcised by any term of the contract or by the provisions of any other law because the non-obstante clause stretches its tentacles up to the said statutory obligation envisaged in Sec. 3 (f) of the Act. If the statutory obligation cast on she mortgagees is not discharged, the mortgagor is empowered to resort to Sec. 4 of the Act and in such acase the Tribunal is empowered to pass appropriate orders for electing such re conveyance.