R ANNAMALAI Vs. PAPPATHI

JUDGEMENT

(1.) The petitioner herein is a creditor who has lent a sum of Rs. 3,000 to the first respondent on a mortgage of her properties. Subsequently, the petitioner has filed a suit on the mortgage in O. S. 807 of 1972, on the file of the District Munsif, Kumbakonam, and also obtained a decree. Thereafter, the first respondent filed an application under Section 6 of the Tamil Nadu Act 13 of 1980, before the Special Tahsildar, Kumbakonam, for a certificate of redemption and for a direction to release the mortgaged properties on the ground that she is a person coming within the definition of 'debtor' defined in that Act. The special Tahsildar held that the annual household income of the first respondent was Rs. 2,400 and, therefore, she is entitled to the benefits of the said Act. There was an appeal by the first respondent (present petitioner) to the Appellate Authority, the second respondent herein, and the Appellate Authority has held that the annual household income of the first respondent was only Rs. 2,400 and, therefore, she is entitled to claim the benefits of the said Act. In that view, relief was given under Section 6 of that Act. The said decision of the Appellate Authority has been challenged in this writ petition.

(2.) It is submitted by the learned counsel for the petitioners that the orders of the Appellate Authority as well as the initial authority are quite arbitrary as they have determined the household income of the first respondent at Rs. 2,400. It is unnecessary to find out the household income of the first respondent, as we are of the view that in cases where the creditor has filed a suit and obtained a decree in relation to the debt, the Tahsildar or the appellate authority acting under Sections 4 and 6 of the Act, have no jurisdiction to give either a certificate of redemption or a direction to release the property and that in those cases it is only the Civil Court which has to adjudicate on the question as to whether the borrower is a person entitled to the benefits of the Act. In this case, as already stated, the petitioner has filed a suit in O. S. No. 807 of 1972 and obtained a decree. If the Tahsildar acting under Section 6 of the Act is taken to have the power to give a certificate of redemption, it will mean that the Tahsildar can nullify, a decree passed by the Civil Court. No doubt, it is true that the legislature can nullify a decree by an express provision but in this case the legislature has not attempted to interfere with the decree passed by the Civil Courts and, therefore, it has not used as non obstinate clause in Section 6 of the Act. If, notwithstanding any decree of the Civil Court, the Tahsildar is empowered to give a certificate of redemption, it might be argued that the legislature had empowered the Tahsildar to nullify the decree by giving a decree of redemption. But the section, as it now stands, does not in terms empower the Tahsildar to go behind the Civil Court's decree and to nullify the same by granting a certificate of redemption.

(3.) It is no doubt true that Section 4 says that no suit or other proceeding shall be maintained as against the debtor and all suits pending as against the debtor shall abate on the commencement of the Act. But, for deciding the question whether the suit is maintainable or whether it has abated, the basic question whether the party who has been sued upon is a debtor or not has to be decided as a preliminary issue by the Civil Court itself. Unless the Civil Court itself decides that preliminary issue, it cannot dismiss the suit as abated or as not maintainable. In this view, we hold that neither the initial authority nor the appellate authority has jurisdiction to decide the question as to whether the first respondent was a debtor as defined in the Tamil Nadu Act 13 of 1980 and as such she was entitled to the benefits of that Act. The orders passed by the said authorities are, therefore, quashed, with liberty to the first respondent to put forward her claim that she is a debtor as defined in the Act, and, therefore, the debt should be taken to have been discharged, before the executing Court, when the mortgage decree is sought to be executed. The writ petition is ordered accordingly. There will be no order as to costs.