ARJANBHAI NARANBHAI Vs. HARIJAN JETU

JUDGEMENT

(1.) The order passed by the Debt Settlement Officer (the First Authority for convenience) at Surendranagar on 27/01/1981 under Sec. 14(2) of the Gujarat Rural Debtors' Relief Act, 1976 ('the Act' for brief) as affirmed in appeal by the order passed by the Appellate Authority in Appeal No. 445 is under challenge in this petition under Art. 227 of the Constitution of India. By his impugned order, the First Authority released the respondent herein from his indebtedness to the petitioner and ordered release of one parcel of land bearing Survey No. 148 (Part) admeasuring 3 acres 37 gunthas situated in village Ranghola in district Surendranagar (the disputed land for convenience) as security for the debt and directed the petitioner herein to hand over its possession back to the respondent.

(2.) The facts giving rise to this petition move in a narrow compass. It appears that the respondent obtained loans of Rs. 4,000.00 on account of his wife's illness and Rs. 2,000.00 on account of his son's marriage from the petitioner herein. It appears that he executed a deed of indebtedness in favour of the petitioner herein on a stamp paper of Rs. 3-50 ps. It appears that, pursuant to the loan transaction, the disputed land was handed over by the respondent herein to the petitioner presumably as a security. It appears that the respondent herein later on moved the First Authority for his release from the petitioner's indebtedness under the relevant provisions contained in the Act. By his order passed on 27/01/1981, the First Authority passed the necessary order releasing the respondent herein from the petitioner's indebtedness and ordered the petitioner to return possession of the disputed land to the respondent as it was released from security. Its copy is at Annexure-A to this petition. That aggrieved the present petitioner. He carried the matter in appeal before the Appellate Authority under Sec. 13 of the Act. It came to be registered as Appeal Case No. 445. By his order passed in the aforesaid appeal, the Appellate Authority dismissed it. Its copy is at Annexure-B to this petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Art. 227 of the Constitution of India for questioning the correctness of the order at Annexure- A to this petition as affirmed in appeal by the appellate order at Annexure-B to this petition.

(3.) Learned Advocate Shri Memon for the petitioner is technically right that there was no mortgage transaction as it could not have been executed on a stamp paper of Rs. 3-50 ps. It, however, transpires from the material on record that against the loans advanced to the respondent herein, possession of the disputed land was taken away by the petitioner as a security. In that view of the matter, though the transaction may not answer the definition of mortgage contained in the Transfer of Property Act, 1982, it was in the nature of a mortgage transaction and the authorities below are right in considering it as such.