KRISHNA DEWAJI TELI Vs. MITHMAL LAKHMICHAND OSWAL

JUDGEMENT

(1.) THIS is the judgment-debtor's appeal from the reversing order of the Additional District Judge, Chanda, passed on 18th April 1942 in Civil Appeal No. 43A of 1941. A final decree for sale had been passed on the basis of a mortgage deed against the appellant in Civil Suit No. 68A of 1934 in the Court of the Subordinate Judge, Second Class, Warora. That decree was transferred by the civil Court to the Collector for execution. The property affected by the decree was sold on 28th March 1940 and confirmed on 27th May 1940 by the Collector. Pending the proceedings before the Collector, the appellant judgment-debtor applied to the Debt Relief Court at Warora under Section 6(1), Relief of Indebtedness Act (14 of 1939) for the determination of his debt and on the admission of the application the Debt Relief Court sent under Section 6(8) of that Act to the Court of the Subordinate Judge, Second Class, Warora, notice of such admission on 8th March 1940 on which day the civil Court received it. The civil Court however, did not take any action on the notice by either sending an intimation of the receipt of such notice to the Collector or recalling the c Form sent to the Collector or directing the Collector to suspend the proceedings before him. The Collector was admittedly unaware of the notice issued by the Debt Relief Court under Section 6(3) of the Act when he held the sale. The property was purchased by the decree-holder himself who is the respondent in this appeal.

(2.) THE decree-holder appeared before the Debt Relief Court on 2nd May 1940 and stated that his debt had been satisfied as a result of the sale. The Debt Relief Court, however, held that the sale was inoperative and void and framed a scheme for repayment of the debt determined by it to be paid by instalments. The decree-holder filed an unsuccessful revision application against that order.

(3.) THE main point in this case is whether the sale held by the Collector in ignorance of the notice of admission issued by the Debt Relief Court to the civil Court was a valid sale. In other words whether the Collector's power to execute the decree was automatically suspended as soon as the civil Court received the notice from the Debt Relief Court under Section 6(3), Relief of Indebtedness Act, or whether it continued in the absence of any intimation from the civil Court acting on the notice received by it. In Kisan v. Adku (38) 1938 N.L.J. 127 it was held by Roughton F.C. that the Collector has no jurisdiction to stay a sale on the judgment-debtor's producing a certificate from the Debt Relief Court without an order of stay from the civil Court. The Collector is not a Court as was pointed out in Zibal Iswara v. Muka . Consequently Section 6(3) of the Act could not apply to the Collector. It was for this reason that Binney F.C. suggested in Chintaman v. Balkrishna (42) 1942 N.L.J. 167 that if the Debt Relief Court issues a notice to the Collector under Section 6(8), Relief of Indebtedness Act, the proper course for him to follow is to allow an adjournment to enable the judgment-debtor to obtain a stay order from the civil Court, The only channel through which the Debt Relief Court could act to stay the proceedings before the Collector would be the civil Court which passed the decree. That would be in accordance with the express terms of Section 6(3), Relief of Indebtedness Act. Such a notice was sent to the civil Court which passed the decree. The effect of that notice was to suspend the civil Court's power in respect of the execution of the decree, and to deprive the decree of its force for the time being. It was therefore imperative on the civil Court to take some action on the notice to stop further proceedings in execution of that decree.