PARMAR HIMATBHAI JINABHAI Vs. GOHIL RAMSINGBHAI BECHARBHAI

JUDGEMENT

(1.) The short question which arises for consideration in this petition is whether the Civil Court can direct delivery of possession of the mortgaged land to the debtor in execution proceedings taken out in virtue of section 9(2) of the Gujarat Rural Debtors Relief Act 1976 (hereinafter called the Act). A few relevant facts leading to this petition may be set out at this stage.

(2.) The first respondent mortgaged his land bearing Survey No. 187 of village Gametha for Rs. 4000.00 sometime in the year 1972 to Jinabhai Jasabhai Parmar since deceased. The three petitioners are the sons of the said mortgagee. On the coming into force of the Act the first respondent filed an application before the debt settlement officer Padra under section 8 of the Act. The debt settlement officer passed an order discharging the debt whereupon an Appeal No. 170 of 1980 was carried to the appellate officer appointed by the State Government for that purpose who modified the order passed by the debt settlement officer and reduced the debt to Rs. 1400.00. The appellate officer directed that on payment of the amount of Rs. 1400.00 the mortgaged land should be restored to the debtor. The debtor sent the amount of Rs. 1400 to the mortgagee by money order but the same was not accepted whereupon he filed an execution application No. 266 of 1982 for delivery of possession of the mortgaged property by depositing the said amount of Rs. 1400 in the Civil Court. The creditor filed a written statement Exhibit 12 raising the contention that the Civil Court had no jurisdiction to entertain an execution application for delivery of possession of the mortgaged property and the remedy available to the debtor was to approach the debt settlement officer under section 1D of the Act.

(3.) The learned Civil Judge (Junior Division) Padra raised issues at Exhibit 14 as under :