1. The petitioner herein had obtained a decree on 29-6-1978 for Rs. 31, 620/- against the third respondent in O. S. No. 345 of 1973 on the file of the Sub Court, Tiruchirapalli. For executing that decree, he filed E. P. No 525 of 1979 in the said court and the said E. P. is said to be still pending. In the meanwhile, the third respondent filed an application before the first respondent claiming relief under the provisions of Tamil Nadu Act 13 of 1980 and for a certificate that the decree amount in O. S. No. 345 of 1973 Sub-Court, Tiruchirapalli, stands discharged. The said application was resisted by the petitioner on the ground that the Tahsildar has no jurisdiction to decide the question of discharge and that the matter should be agitated only before the Civil Court.
2. The first respondent however, held that he had jurisdiction to go into the question of discharge and that the third respondent is entitled to the benefits of the Act as he is a debtor as defined in the Act. The petitioner took the matter in appeal and the appellate authority has also agreed with the view of the Tahsildar and confirmed his order. Both the authorities have held as the third respondent owns property worth less than Rs. 25,000/- and his annual household income is less than Rs. 4,800/- he is entitled to the benefits of the Act, and therefore, the decree debt should be taken to have been wiped out. The current views taken by both the authorities below stand challenged in this writ petition mainly on the ground that neither the first respondent nor the second respondent has jurisdiction to give a certificate of discharge so far as debt due to the petitioner is concerned.
3. It is submitted by the learned counsel for the petitioner that it is only in cases where there is a pledge or a mortgage, the Tahsildar is given by the power under Ss. 5 and 6 respectively to give a certificate of discharge and that in respect of other debts the Tahsildar has no jurisdiction to give a certificate of discharge and it is only the Civil Court which can decide the question whether the debt stands discharged by S. 4 of the Act 13 of 1980. In support of his contention, the learned counsel refers to the decisions in Perumal v. Chinna Kuppanna Goundan (1981-94 M ad LW 317):(AIR 1981 Mad 271). In that case, after referring to the relevant provisions of the Act, such as Ss. 4, 5 and 6, the learned Judge has held that the Act has not specified any specific statutory authority to work out the relief regarding the money claims pending or decreed, as it has done under Ss. 5 and 6 in respect of pledge debts or mortgage debts, and that, therefore, where the debtor claims relief under the Act in respect of money claims, it is the Civil Court in which the money claims, has been made by the creditor which has to decide the question whether the debtor is entitled to the relief under Act 13 of 1980 or not. The reasoning is in the following paragraph.
"A fair interpretation of S. 4 (1) (a) to (d) of the Act coupled with the absence of a provision enabling the Tahsildar to deal within any manner matters pending before Civil Courts, would inevitable lead to the conclusion that where matters are pending before the Civil Court, be they suits or decrees already passed and in the process of execution or other proceedings, the civil court will have to consider the claim of a person that he is a debtor and afford relief. Sec. 5 and 6 of the Act provide for the machinery to work out relief in two specified cases, viz., pledge and mortgage and cannot therefore, be made applicable to cover cases of indebtedness of a `debtor' on other claims".
A conjoint reading of Ss. 4, 5 and 6 of the Act seems to indicate that the view taken by the learned Judge flows from the language used in S. 4 as compared to Ss. 5 and 6 of the Act. When Ss. 5 and 6 specifically confer upon the Tahsildar the power to give a certificate of discharge as regards a pledge debt as well as a mortgage debt, no such power has been given to the Tahsildar in respect of money claims which one pending before a civil court. Therefore we are in entire agreement with the view taken, by Ratnam, J. in the above case. Therefore the third respondent in this case who is the respondent in the execution petition in E. P. 525 of 1979 has to agitate the question as to whether he is entitled to the benefits of S. 4 of the Act 13 of 1980 before the executing court, and he cannot approach the Tahsildar or the appellate authority for getting a certificate of discharge of money claims which are pending before the civil court.
In this view of the matter, the order of the first and second respondents should be taken to have been passed without jurisdiction and their orders are therefore, quashed. However, we make it clear that the third respondent is entitled to agitate the question as to whether he is entitled to the benefits of S. 4 of the Act, Act 13 of 1980, before the executing court. The writ petition is accordingly allowed. No costs.
4. Petition allowed.