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Jinabhai Jesabhai Parmer by L R's Vs. Gohil Ramsingbhai Becharbhai and Anr. (28.12.1982 - GUJHC) - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Case NumberSpl. Civil Appln. No. 4203 of 1982
Judge
Reported inAIR1983Guj160; (1983)1GLR460
ActsGujarat Rural Debtors' Relief Act, 1976 - Sections 3, 3(1), 3(2), 5, 6, 6(1), 6(2), 7, 7(1), 7(2), 8, 8(1), 8(2), 8(3), 8(4), 9(1), 9(2), 9(1), 13, 14(2), 15 and 15(1); Constitution of India - Article 227; Gujarat Rural Debtors Relief Rules, 1976 - Rules 4 and 5
AppellantJinabhai Jesabhai Parmer by L R's
RespondentGohil Ramsingbhai Becharbhai and Anr.
Appellant Advocate J.M. Patel, Adv.
Respondent Advocate B.D. Patel, Adv.
DispositionPetition allowed
Excerpt:
.....proceedings taken out by virtue of section 9 (2) - section 9 (2) states that order passed by debt settlement officer under section 8 (3) (ii) (b) shall be executable like decree or order of civil court - no such order on behalf of property could have been contemplated by legislature once property stands released in favour of debtor under section 14 (2) - direction given to debt settlement officer for delivery of mortgaged property cannot be treated as decree for purpose of execution by civil court - only remedy to debtor is to invoke powers of debt settlement officer under section 15 (1) if debtor is not put in possession of mortgaged property in compliance with section 14 (2) - civil court has no jurisdiction to order delivery of possession of property in execution proceedings..........on the coming into force of the act the first respondent filed an application before the debt settlement officer, padra, under section 8 of the act. the debt settlement officer passed an order discharging the debt whereupon an appeal no. 170 of 1980 was carried to the appellate officer appointed by the state government for that purpose who modified the order passed by the debt settlement officer and reduced the debt to rupees 1400/-. the appellate officer directed that on payment of the amount of rupees 1400/- the mortgaged land should be restored to the debtor. the debtor sent the amount of rs. 1400/- to the mortgagee by money order but the same was hot accepted whereupon he filed an execution application no. 266 of 1982 for delivery of possession of the mortgaged property by.....
Judgment:
ORDER

A.M. Ahmadi, J.

1. The short question which arises for consideration in this petition is, whether the Civil Court can direct delivery of possession of the mortgaged land to the debtor in execution proceedings taken out in virtue of Section 9(2) of the Gujarat Rural Debtors' Relief Act, 1976 (hereinafter called 'the Act'). A few relevant facts leading to this petition may be set out at this stage.

2. The first respondent mortgaged his land bearing Survey No. 187/2 of village Cametha for Rs. 4000/- sometime in the year 1972 to Jinabhai Jesabhai Parmar, since deceased. The three petitioners are the sons of the said mortgagee. On the coming into force of the Act the first respondent filed an application before the Debt Settlement Officer, Padra, under Section 8 of the Act. The Debt Settlement Officer passed an order discharging the debt whereupon an Appeal No. 170 of 1980 was carried to the appellate officer appointed by the State Government for that purpose who modified the order passed by the Debt Settlement Officer and reduced the debt to Rupees 1400/-. The appellate officer directed that on payment of the amount of Rupees 1400/- the mortgaged land should be restored to the debtor. The debtor sent the amount of Rs. 1400/- to the mortgagee by money order but the same was hot accepted whereupon he filed an execution application No. 266 of 1982 for delivery of possession of the mortgaged property by depositing the said amount of Rs. 1400 in the Civil Court. The creditor filed a written statement. Exhibit 12 raising the contention that the Civil Court had no jurisdiction to entertainan execution application for delivery of possession of the mortgaged property and the remedy available to the debtor was to approach the Debt Settlement Officer under -Section 15 of the Act.

3. The learned Civil Judge, (Junior Division), Padra, raised issues at Exhibit 14 as under :--

'(1). Whether this Court has jurisdiction to try and entertain this executionpetition

(2) What order?'

The learned Civil Judge came to the conclusion that in view of Section 9 (2) of the Act, the Civil Court had jurisdiction to execute the order of the appellate officer because it was in the eye of law a 'decree' of a Civil Court. He came to the conclusion that if it was held that the civil court had no jurisdiction to direct delivery of possession in execution proceedings arising under the Act, an anomalous position would arise in that one part of the decree relating to payment of amount would be executable in the civil court while the other part relating to delivery of possession would be executable before the debt settlement officer He held that such a situation could not have been envisaged by the legislature while enacting this welfare legislation. He, therefore, came to the conclusion that the civil court had jurisdiction to execute that part of the order by which the creditor was directed to deliver possession of the mortgaged property to the debtor under Section 9 (2) of the Act and accordingly passed the impugned order for delivery of possession on 8th Sept. 1982. The creditor feeling aggrieved by the said order has preferred this petititon under Article 227 of the Constitution.

4. The Act was enacted to provide for relief from indebtedness to certain farmers, rural artisans and rural labourers in the State of Gujarat. Section 3 (1) lays down that on and from the appointed day --

'(a) every debt outstanding against a debtor who is a marginal farmer or rural labourer, or who is a rural artisan whose income does not exceed rupees 2400 per year, shall be deemed to be wholly discharged:

(b) every debt outstanding against a debtor who is a small farmer, or who is a rural artisan whose income exceeds

rupees 2,400 per year but does not exceed rupees 4,800/- per year, shall --

(i) in a case where any amount equal to or exceeding twice the amount of the principal has already been paid by, or recovered from, such debtor before the appointed day, be deemed to be wholly discharged; and

(ii) in any other case, be deemed to be reduced to one-half of the recognised debt.

Provided that the amount which remains to be paid by the debtor shall not exceed twice the amount of the principal.'

Sub-section (2) of Section. 3, however, provides that notwithstanding anything contained in the foregoing provisions, in no case shall a debtor be liable to pay to his creditor or creditors under Sub-clause (ii) of Clause (b) of Sub-section (1), an amount exceeding rupees 1.400 in the aggregate. Section 5 provides for the appointment of debt settlement officers. Section 6(1) enjoins upon a debtor to furnish to the local authority within whose jurisdiction he ordinarily resides, a true statement in writing in prescribed form containing the particulars set out in Clauses (i) to (vi) in respect of every debt due by him on the appointed day to his creditor or creditors. Sub-section (2) of Section 6 entitles any of the creditors to furnish to the same local authority a true statement in the prescribed form containing the particulars set out in Clauses (j) to (v) thereof in respect of the debt or debts due to him by the debtor. Section 7 (i) requires that after the time prescribed under Sub-section (1) of Section 6 has elapsed, the authorised officer of the concerned local authority shall on the basis of the statements received under Section 6 prepare or cause to be prepared a statement in the prescribed form setting out the particulars mentioned in Clauses (i) to (v) therein. After such a statement is prepared, Sub-section (2) of Section 7 requires the said authorised officer to publish it in the prescribed manner together with a public notice calling upon all debtors and creditors mentioned therein who may have any dispute to raise against any of the particulars stated therein to make an application to the debt settlement officer having jurisdiction, within such period after the date of publication of the statement, as may be prescribed challenging the correctness of such particulars. Sub-sections, (1) and (2) of Section 8 entitle any debtor or creditor who has any dispute to raise against any of the particular mentioned in the said statement to make an application in writing to the concerned debt settlement officer stating the grounds of bis dispute against the particulars. On receipt of such an application the debt settlement officer must serve a notice in such form and in such manner as may be prescribed upon the opposite party asking him to remain present for the purpose of being heard in connection with the objection on a date to be fixed by him. Under Sub-section (3) of Section 8 the debt settlement officer on being satisfied that the notice has teen duly served on the opposite party, may call for such further in-formation or particulars in relation to the debt in question as may he considered necessary and may after making such inquiry and following such procedure, as the circumstances of Ihe case may demand, pass:

(i) in a case in which he is satisfied that the debtor is a marginal farmer or a rural labourer or is a rural artisan whose income does not exceed rupees 2400 per year, an order discharging the debt completely and grant to the debtor a certificate of discharge from the debt in the prescribed form; and on the grant of such certificate to a debtor in respect of a debt, such debt shall not be recoverable from such debtor;

(ii) in a case in which the debtor is a small farmer or is a rural artisan whose income exceeds Rupees 2,400 per year, but does not exceed Rs. 4,800 per year, an order --

(a) discharging the debt completely if any amount equal to or exceeding twice the amount of the principal has already been paid by, or recovered from, such debtor before the appointed day and grant to the debtor a certificate of discharge from the debt in the prescribed form, and on the grant of such certi-ficate to such debtor in respect of a debt, such debt shall not be recoverable from him; and

(b) determining, in a case not falling under Sub-clause (a), the amount of the recognised debt and reducing the debt in accordance with the provisions of Sub-clause (ii) of Clause (b) of Sub-section (1), and Sub-section (2), of Section 3 and the amount to which such debt is reduced shall thereupon be the amount due from the debtor in respect of the debt or debts due from the debtor and the portion of the debt or debts in excess of such amount shall be deemed to have been discharged. Sub-section (4) of Section g deals with a situation where no application under Sub-section (1) of Section 8 is received by the debt settlement officer from any debtor or creditor within the prescribed period. En that case the Sub-section provides that the debt settlement officer may, after making such inquiry as he deems fit, pass an order under Clause (i) or under Clause (ii), of Sub-section (3), as the facts and nature of the case may require; and on the passing of such order the consequences mentioned in Clause (i), or as the case may be, Clause (ii) of Sub-section (3) shall follow. Any order made by the debt settlement officer under the aforesaid provision shall, subject to the decision in appeal if any, under Section 13, be final and shall not be called in question in any court. That brings us to Section 9 (11 which lays down that the amount of debt as reduced under the foregoing provision shall be paid by the debtor without any interest, in ten equal annual instalments. Sub-section (2) of Section 9 which is relied upon may be reproduced. It reads as under:--

'9. (2) Subject to the provisions of Sub-section (1), the order of the debt settlement officer passed under Sub-clause (b) of Clause (ii) of Sub-section (3) of Section 8 shall be executed by the Civil Court having jurisdiction, in the area in which the debtor resides as if it were a decree or order of that Court.'

On a plain reading of this Sub-section it is clear that the order passed by the debt settlement officer under Sub-clause (b) of Clause (ii) of Sub-section (3) of Section 8 shall be executable like a decree, or order of a civil Court. There can, therefore, be little doubt that an order made under the aforesaid Sub-clause can be executed by a civil court as if the said order is a decree or order of the very court. The next relevant provision is Section 14 (2) which reads as under:--

'14. (2) Where a certificate of discharge of any debt is granted to a debtor or an order reducing his debt is made under Section 8, every properly pledged or mortgaged by such debtor as a security for such debt shall stand released in favour of such debtor and the creditor shall forthwith return such property to the debtor.'

If despite the mandate of law a creditor fails to return the mortgaged propertyto the debtor, the debtor may approach the debt settlement officer under Section 15 (1) which reads as under:--

'15. (1) Where the creditor fails to return the property to the debtor as required by Sub-section (2) of Section 14 and the debtor is opposed or impeded in taking possession of the property, the debtor may apply to the debt settlement officer having jurisdiction in the area in which such property is situated or held and on receipt of such application from a debtor, the debt settlement officer shall, if he is satisfied that the applicant is enlitled to obtain delivery of possession of the property in question, take, or cause to be taken, such steps for securing the delivery of possession of the properly to the debtor, and may, for such purpose, take such assistance as he considers necessary, or use, or cause to be used, such force as may be considered reasonably necessary.'

Section 28 empowers the State Government to make rules for all or any of the matters catalogued in els. (a) to (1) of Sub-section (2) thereof. In exercise of the said power the State Government has framed Rules known as the Gujarat Rural Debtors' Relief Rules, 1976 (hereinafter called 'the Rules'). Rule 4 prescribes the form for furnishing information under Section 6 (1); Rule 5 prescribes the form for furnishing information under Section 6 (2); and Rule 6 prescribes the form for furnishing information under Sub-section (1) of Section 7 and Rule 7 prescribes the form of public notice to be given under Sub-section (2) of Section 7 of the Act. Rule 9 prescribes the period within which application under Sub-section (2) of Section 7 may he made for challenging the correctness of the particulars of the statement published under Rule 8 read with Section 7 (1) of the Act. Rule 15 refers to the issue of notice for the return of the mortgaged property. It says that where the creditor fails to return the property to Ihe debtor as required by Sub-section (2) of Section 14, the debt settlement officer shall, on receipt of the application of the debtor, issue a notice on the creditor calling upon such creditor to return the property to the debtor within fifteen days. This is in brief the scheme of the Act and the Rules framed thereunder,

5. It is clear from the scheme of the various provisions of the Act that after the statement is published, Ihe debtor or a creditor who desires to raise any dispute in regard to any particular mentioned in the said statement may do so by an application to be preferred in writing to the debt settlement officer having jurisdiction in the area in which the debtor ordinarily resides setting out the grounds of his dispute against the said particulars. Once such an application is received it is incumbent on the debt settlement officer to serve a notice on the opposite party asking him to remain present for the purpose of being heard in connection with the said application on a date to be specified by him. After such notice is served on the opposite party, the debt settlement officer may call for such further particulars in relation to the debt in question as he may consider necessary and after making such inquiry as the circumstances may demand, he may pass an order discharging the debt in -toto and issue to the debtor a cgr.tifica.te of discharge of he may reduce the debt which shall not exceed Rs. 1400/- as provided by Sub-section (2) of Section 3 of the Act. The scheme of Section 8, therefore, makes it obvious that the debt settlement officer can pass an order either discharging the debt in toto or reducing the debt to a sum not exceeding Rs. 1400/-. That section has nothing to do with delivery of posses-sion of the mortgaged properly. It only speaks of the debt being either discharged or reduced. The marginal note of Section 9 reads 'payment of debt' and Sub-section (2) thereof provides that the order of the debt settlement officer passed under Sub-clause (b) of Clause (ii) of Sub-section (3) of Section 8 shall be executed by the civil court having jurisdiction in the area in which the debtor resides as if it were a decree or order of that court. Now Sub-clause (b) of Clause (ii) of subsection (3) of Section 8 refers to determination of the amount and reduction of the debt. That Sub-clause does riot speak about delivery of possession of the mortgaged property. It is the order contemplated under that Sub-clause which could be, executed by the civil court as if it were a decree or order of that court. If that, Sub-clause circumscribes the jurisdiction of the, debt settlement officer in the matter of mak-ing of an order of determination of the amount and reduction of the debt, it is difficult to conclude that Sub-section (2) of Section 9 which by fiction treats such an order to be a decree or order of a civil court extends to the question regarding delivery of pos-session. In other words, under Sub-section (2) of Section 9 an order determining the amount and reducing the debt in accordance with the provisions of Sub-clause (ii) of Clause (b) of Sub-section (1) and Sub-section (2) of Section 3 can alone be treated as a decree or order of a civil Court for the purposes of execution under Sub-section (2) of Section 9 of the Act. That is so because Section 8 does not confer jurisdiction on the debt settlement officer to pass an order for delivery of possession of the mortgaged property. That is not necessary for the obvious reason that Sub-section (2) of Section 14 does not leave the matter to any authority under the Act but by its own thrust ordains that once a certificate of discharge of any debt is granted to a debtor or an order reducing his debt is made under Section 8, every property pledged of mortgaged by such debtor as a security for such debt shall stand released in favour of the debtor. The words 'shall stand released' being mandatory in nature, the Act does not contemplate, an order by the debt settlement officer for delivery of such property to the debtor. It is by the thrust of Section 14 (2) that the property stands released in favour of the debtor and the creditor is ordered to forthwith return the property to the debtor. There is no question of adjudication by the debt settlement officer so far as release of the mortgaged property is concerned because the law itself provides that it shall stand released. Once the property stands released in favour of the debtor by virtue of Section 14 (2) of the Act, no order by the debt settlement officer in that behalf could have been contemplated by the legislation and therefore, advisedly Section 8 does not confer jurisdiction on the debt settlement officer to pass any such order. Once the debt is discharged or is reduced and a certificate in that behalf ;is issued, every property pledged or mortgaged by the debtor as security for the debt in question stands released by the operation of law in favour of the debtor and the creditor is called upon to return the same to the debtor forthwith. That being the mandate of Section 14 (2) it is difficult to concur with the submission that an order passed by the debt settlement officer for the delivery of possession would be an order under Sub-clause (b) of Clause (ii) of Sub-section (3) of Section 6 of the Act which could be executed as a decree or order of a civil court by virtue of Section 9. (2) of the Act. If a debt settlement officer has given a direction for the delivery of the mortgaged property, it cannot form part of the order contemplated under the said Sub-clause and cannot, therefore, be treated as a decree for the purpose of execution by a civil court. Such a direction would be clearly outside the purview of the said Sub-clause and actually superfluous in nature because no such direction is necessary in view of the mandate of Section 14 (2) of the Act. If the mandate of Section 14 (2) of the Act is not complied with, 'the remedy is to apply under Section 15 to the debt settlement officer to enforce delivery of possession of the property to the debtor. For doing so, the debt settlement officer is also empowered to use such force as he may consider reasonably necessary. The scheme of the Act is, therefore, complete and there is no doubt that if a debtor is not put in possession of the mortgaged property in compliance with the mandate of Section 14. (2) of the Act, his only remedy is to invoke the powers of the debt settlement officer under Sub-section (1) of Section 15 of the Act. I am, therefore, of the opinion, that the civil Court has no jurisdiction to order delivery of possession of the property in execution proceedings taken out in virtue of Sub-section (2) of Section 9 of the Act.

6. In the result, therefore, this petition succeeds. The order passed by the learned Civil Judge (Junior Division). Padra, in Execution Application No. 266 of 1982 Dt. 8th Sept. 1982 is set aside. The execution application having been filed in a Court which has no jurisdiction, is liable to be dismissed. It will, however, be open to the petitioners to withdraw the amount of Rs. 1400/- deposited in the execution application as the learned advocate for the first re-ispondent has no objection to such with-drawal. Even if the amount is not withdrawn by the petitioners it will be open to the debtor to approach the debt settlement officer under Section 15 of the Act as the same will be treated as payment to the petitioners in compliance with the order passed under Section 8 of the Act. The rule is made absolute ac-cordingly. There will be no order as to costs.


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