1. The petitioner herein is challenging the order of the second respondent dated 29-6-1981 holding that the 4th respondent is entitled to the benefits of the Tamil Nadu Debt Relief Act, 1980 and passed an order of discharge in relation to the promissory note loan said to have been taken by the 4th respondent from the petitioner.
2. The circumstances under which the said order came to be passed by the second respondent may be briefly stated. The 4th respondent herein had taken a loan of Rs. 1,000/- under a promissory note from the petitioner. Based on the promissory note the petitioner had filed a suit 0. S. No. 336 of 1969 and obtained a decree. In execution of that decree, the 4th respondent's property had been attached and brought to sale and his properties had been purchased in Court-auction by a third party. The sale proceeds obtained in the said sale of the 4th respondent's property were sufficient to fully discharge the decree debt due to the petitioner. All these have taken place before 1978, even before the Tamil Nadu Debt Relief Act, 1980 came into force.
3. After the Act came into force the 4th respondent has filed a petition for a certificate of discharge of the promissory note debt from the Tahsildar under Section 5 of the Act. Before the Tahsildar the, petitioner appeared and stated that debt due to him from the debtor and therefore the application filed before the Tahsildar is not maintainable. The Tahsildar taking note of the entire debt has already been discharged in full by the sale of the judgment-debtor's property and there is no subsisting the stand taken by the petitioner who has been cited as a creditor the Tahsildar has held that as there is no debt due by the 4th respondent as on the date of the application, there is no question of giving a declaration of discharge of a debt which is not subsisting, and in that view he dismissed the application filed by the 4th respondent.
4. The 4th respondent took the matter in appeal and the appellate authority, the second respondent herein, has allowed the appeal and granted a declaration of discharge of a debt which is not subsisting. The appellate authority has taken the view that the Tahsildar was not right in accepting the evidence of the creditor that no amount is due to him, that unless some amount is due to the creditor, the debtor would not have filed an application and therefore the decree debt should be taken to be subsisting on the date of the application and as the household income of the 4th respondent was only Rs. 3,300/- he should be declared to be eligible for getting the relief under the Act. Aggrieved against the order of the appellate authority the petitioner has filed this present writ petition seeking to quash the same.
5. According to the learned counsel for the petitioner when the creditor himself says that no amount is due to him and no proceedings are pending for realisation of any debt as against the 4th respondent, the appellate authority, has no jurisdiction to assume the debt to be subsisting and grant the relief by way of a discharge to the 4th respondent. It is pointed out by the learned counsel that once the debt has been sued upon and a decree has been obtained by the creditor and the decree debt has been realised fully by the sale of the judgment debtor's properties long before the coming into force of the Act is not open to the appellate, authority to assume that the debt is subsisting and give a declaration of discharge in relation of that assumed debt.
6. In the writ petition notice has been served on the 4th respondent on 11-8-1981, but he has not appeared either in person or through counsel. The second respondent whose order is challenged is - represented by the Government Pleader and the Government Pleader does not seek to support that order. Even assuming that the 4th respondent is a person who will come within the definition of debtor as defined under the Act as his income has been found to be less than Rs. 4,000/- per year, as there is no subsisting debt on the date of application before the Tahsildar, there is no question of a non existing debt being discharged by an order passed under the provisions of the Act . The creditor has deposed that no amount is due to him and his decree debt has been dis-1 charged long before by the sale of the judgment-debtor's property in court-auction and there are no proceedings at all pending as against the judgment-debtor. The appellate authority is in error in assuming a debt to exist merely because the 4th respondent has filed an application. Simply because an application has been filed under S. 5 off the Act it is not possible to assume the existence of a debt where, there is no sub sisting debt as on the date of the application By filing an application under S. 5 of the Act, the 4th respondent cannot re open the' execution proceedings as against him which!, have ended by the sale of the property in court-auction to third party and the decree holder realising the amount due to him fully. The appellate authority obviously committed an error in assuming that the execution proceeding as against the 4th respondent is still pending and therefore it has power to declare the debt to have been discharged. We are clearly of the opinion that the order of the second respondent dated 29th June, 1981 is erroneous and the order passed by the initial authority, the third respondent herein, holding that there is no subsisting debt, is right. The writ petition is allowed accordingly. No costs.
7. Writ petition allowed.