MASANAMUTHU NADAR Vs. RETNAM NADAR

JUDGEMENT

(1.) THE appellant is the decree holder and also the auction purchaser. THE appellant filed O. S. No. 767 of 1973 for recovery of amounts due on, a simple mortgage. THE suit was decreed and the mortgaged property was brought to sale in Court auction. With, permission of the Court, the decree holder himself purchased the property. THEreafter the respondent herein filed an application before the Tahsildar to discharge the debt under the provisions of the Tamil Nadu Debt Relief Act 13 of 1980 (hereinafter referred to as the Act ). THE petition was dismissed. On appeal, the Revenue Divisional Officer held that the respondent is a debtor within the meaning of the Act. He also filed E. A. No. 718of 1991 before the Principal District Munsif , Nagercoil for redelivery of the property under Order 21, rule 101 and Sections 47 and 151, C. P. C. Redelivery was ordered. Against that an appeal was filed which was dismissed and therefore, the present C. M. S. A. has been filed.

(2.) MR. Srikumaran Nair, appearing, for the learned counsel for the appellant submitted that the application for redelivery is not maintainable. The application has been filed under Order 21, Rule 101, C. P. C. and the judgment debtor cannot file an application under Order 21, Rule 101, C. P.C. The Court below had dealt with the petition as one under Section 144, C. P. C. Section 144, c. P. C. will not apply to this case since there is no variation, modification or reversal of the decree in favou r of the appellant and he also cannot invoke inherent power when his powers to order redelivery are circumscribed by the provisions of C. P. C. as well as the Debt Relief Act. He also submitted that the Executing Court cannot go beyond the decree. He relied on the following judgments: (1) Kuppa Sankara Sastri v. Kakumanu Varaprasad, 1947 (1) MLJ 369; (2) Maganti Venkataswami Naidu v. Annapareddi Nagireddi alias Mutyalu Reddi , 1946 (l) MLJ 5; (3) A. R. Vinsithurthan Chettiar v. The Government of Tamil Nadu, 1982 (II) MLJ 437; (4) Perumal Gounder v. Chinna Kuppanna Gounder , 1981 TLNJ 236.

(3.) PERUMAL Gounder v. Chinna Kuppanna Gounder , 1981 TLNJ 236 dealt with the scope and applicability of Sections 5 and 6 of the Act, and in that, the learned Judge held that in cases where either in a suit or in the course of execution proceedings, a suitor puts forth a claim that he is a 'debtor' ; , the Civil Court must necessarily investigate and ascertain whether such a claim is made out or not, and, thereafter grant relief under Section 4 of the Act or refuse it and it was also held that for ripping open decrees already passed by the Civil Court, in keeping with the object of the legislation that even in such cases, the Courts should investigate the claim and grant appropriate relief. But as already stated the Civil Court while granting the relief under the Act does not appear to have investigated the claim of the respondent that he is a debtor.