SUMITRA Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) PETITIONER has filed this petition under Article 226/227 of the Constitution of India challenging the order Annexure-F dated 19-4-1988 passed by Sub Divisional Officer, Bagli, District Dewas in Debt Relief Case No. 85/86 whereby ordered for delivery of possession of the disputed house which was mortgaged by Pyara and Devaji, the husband of respondent No. 1 and father of respondent Nos. 2, 3 and 4 with Maduji, the great grand father of the petitioner Sumitrabai.

(2.) THE factual matrix giving rise to this petition in short is that on 6-10-1959, respondent No. 3 late Deva and his brother Pyara, resident of village Hatpiplya, Sajjanganj Ward No. 4 Nagar Palika, Tehsil Bagli, District Dewas mortgaged their house in rupees two thousand with great grand father of the petitioner named Moduji. A written agreement was arrived between the parties to this effect which is Annexure-A. According to this agreement, late respondents Pyare and Devaji could live in the said house as tenants and they were required to pay rent amount of Rs. 25/- per month. But they did not made the payment, therefore, a civil suit was filed by late Moduram against Pyarelal and Deva and same was decreed by judgement and decree dated 16-1-1971 by Civil Judge, Class II, Bagli vide Civil Suit No. 33-A/1969. Decree was passed in favour of late Moduram and defendants were directed to pay Rs. 900/- balance amount of rent and handover the vacant possession of the house to the plaintiff. This is filed as Annexure-B. Against this judgement and decree defendants Pyarelal and Deva did not file any appeal before the competent Court having jurisdiction over the matter. In execution of the judgement-and decree, possession of the house was delivered to late Moduram. Both the parties belongs to Scheduled Caste community (Mochi).

(3.) AGAINST this order dated 2-2-1977 passed by the Debt Relief Court, Kannod, Devaji went up in revision before the revisional Court u/S. 22 of the Act and the said revision was also dismissed by order dated 23-7-1977 (Annexure-D) by the learned Collector, Dewas. The learned Collector, Dewas relying on Division Bench judgement of this High Court passed in case of Kishanlal v. Shree Rajvaidya, 1974 MPLJ (SN) 97, held that after execution of the sale deed in pursuant to the judgement and decree passed by the Civil Court and in view of the Division Bench judgement that Debt Relief Court has no jurisdiction under the provisions of the Act, ordered for delivery of possession to mortgagor on the ground that mortgage was extinguished, dismissed the revision of debtor, Devaji. In the case in hand, factual and legal position is better in favour of the petitioner than the case of Kishanlal (supra). In this case, Debt Relief Court has not issued any certificate regarding extinguishment of mortgage. The only certificate was issued regarding discharge of debt of Rs. 900/-.