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Siriyapushpa Ratnam Vs. Perumal Nadar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1984)1MLJ189
AppellantSiriyapushpa Ratnam
RespondentPerumal Nadar
Cases ReferredPerumal v. Chinna Kuppanna Gounder
Excerpt:
- .....of the judgment, dated 31st july, 1979 in o.s. no. 844 of 1978 on the file of the court of the learned district munsif, nagercoil and the evidence of the respondent, the judgment-debtor as r. w. i and the contents of exhibit b-1 the copy of the income certificate, dated 30th september, 1980 issued by the tahsildar (held that the judgment debtor comes within the act). the case of the decree-holder before the lower executing court was that the respondent-judgment-debtor is working in the arulvoimozhi spinning mill getting a monthly income of rs. 550, that besides, the respondent owns a taxi and other immovable properties. hence, the judgment-debtor has means to pay the decree amount. on the other hand, the judgment-debtor filed before the lower court a counter inter alia contending.....
Judgment:

S. Swamikkannu, J.

1. This is a revision petition filed against the order in E.P. No. 413 of 1980 in O.S. No 939 of 1979 passed on 20th August, 1981 by the Principal District Munsif of Nagercoil in a petition for arrest of the judgment-debtor to realise the decree amount under Order 21, rules 37 and 38, Civil Procedure Code. The learned Principal District Munsif, after having taken into consideration the evidence of P. W. 1, the decree-holder as well as the contents of Exhibits A-1, copy of the judgment, dated 31st July, 1979 in O.S. No. 844 of 1978 on the file of the Court of the learned District Munsif, Nagercoil and the evidence of the respondent, the judgment-debtor as R. W. I and the contents of Exhibit B-1 the copy of the income certificate, dated 30th September, 1980 issued by the Tahsildar (held that the judgment debtor comes within the Act). The case of the decree-holder before the lower executing Court was that the respondent-judgment-debtor is working in the Arulvoimozhi Spinning Mill getting a monthly income of Rs. 550, that besides, the respondent owns a taxi and other immovable properties. Hence, the judgment-debtor has means to pay the decree amount. On the other hand, the judgment-debtor filed before the lower Court a counter inter alia contending that his income as an employee in the spinning millis Rs. 356.31 and he has no other property. He denied owning a taxi and getting income by running the taxi. He claimed benefits of the Tamil Nadu Act XIII of 1980.

2. The learned District Munsif held that the judgment-debtor has no means to pay the decree amount. He has also held that the judgment-debtor is a debtor under the Act XIII of 1980, and the decree abates under Section 4(1)(c) of the Act XIII of 1980. Hence the learned District Munsif held that the petition for arrest of the judgment-debtor to realise the decree amount under Order 2j, rules 37 and 38 of the Civil Procedure Code, is not maintainable. The lower Court has also found that the judgment-debtor is entitled to the benefits of the Act XIII of 1980.

3. It is contended in this revision petition by the learned Counsel for the revision petitioner/decree-holdar that the lower Court had taken into consideration Exhibit B-1, the copy of the income certificate issued by the Tahsildar dated 30th August, 1980 and it has solely relied upon the same and given its finding that the judgment-debtor is entitled to the benefits under the provisions of the Act XIII of 1980. This, according to the learned Counsel for the revision petitioner, is against the decision Perumal v. Chinna Kuppanna Gounder (1981) 2 M.L.J. 1 : 94 L.W. 317 : (1981) T.L.N.J. 236 : A.I.R. 1981 Mad. 271. The following observation of Ratnam, J., is relied on by the learned Counsel for the revision petitioner:

While the relief available under Section 4(1) (a) is worked out by application under Section 5 and rules 3 and 9 and relief under Section 4(1) (ft) is worked out by resorting to Section 6 and rules 3 and 10, there is no machinery provided at all to investigate the claim of a person that he is a debtor entitled to the benefits of the Act and to adjudicate thereon and make available relief from indebtedness or arrest as the case may be statutorily; therefore the Tahsildar has been constituted a functionary to work put relief only with reference to matters falling under Sections 5 and 6, dealing with pledges and mortgages.

A fair interpretation of Section 4(1) (a) to (d)of the Act coupled with the absence of any provision enabling the Tahsildar to deal with in any manner matters pending before Civil Courts would show 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. Sections 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' or to other claims. Sections 5 and 6 appear to apply only to cases where the creditor or debtor has not resorted to Court. On the return of the articles pledged by the debtor to the creditor, the relationship of pledger and pledgee is terminated. Likewise, the redemption of a mortgage provided for under Section 6, if permitted by the Tahsildar, would snap the relationship of mortgagor and mortgagee between the debtor and the creditor and a certificate of redemption granted by the Tahsildar in the prescribed form would be evidence of redemption. That would mean that the mortgage cannot form the subject-matter of a suit before a Civil Court. In other words, the exercise of the powers conferred on the Tahsildar under Sections 5 and 6 of the Act and the granting of the relief under Section 4(1) (e) and (/) of the Act would really wipe out the cause of action itself for institution of the suit, be it on a pledge or on a mortgage. It is in this sense that cases of pledges and mortgages not already forming the subject-matter of suits before the Courts can be adjudicated upon by the Tahsildar exercising powers under Sections 5 and 6 of the Act and in no other cases. In all other cases, where matters have come before the Civil Court either on a suit or a decree in the process of execution or other proceeding, when a suitor puts forth a claim that he is a debtor within the meaning of the Act, the Civil Court has necessarily to investigate and ascertain whether such a claim is made out or not, and thereafter proceed to grant relief under Section 4(1) (a) to (d) of the Act or refuse it. In the course of such proceedings, even if a Tahsildar's certificate which is relevant only for purposes of Sections 5 and 6 of the Act is relied upon by a person claiming to be a debtor, that would be just apiece of evidence to be considered along with other evidence and has no higher probative value. Apart from cases covered by Sections 5 and 6 of the Act, the Tahsildar has no power under the Act to adjudicate upon other claims and all other matters have to be dealt with by the Civil Court before which suits, execution or other proceedings have been either initiated or are pending.

A question may also arise as regards matters under Sections 5 and 6 of the Act committed to the adjudication of the Tahsildar, but which have already proceeded to a decree. Even in such cases, it is only the Civil Court which has to consider the question whether a person is entitled to the benefits of the Act as a 'debtor' and if so, to grant relief, as provided under section (1) (a) to (d). This also stands to reason because a decree of a Civil Court validly passed and legally effective and enforceable cannot be undone by a Tahsildar acting under the provisions of the Act. In the absence of a provision in the Act for ripping open decrees already passed by the Civil Court which certainly cannot be undone by a Tahsildar acting under the provisions of the Act, it would be quite in keeping with the object of the legislation that even in such cases, the Courts should, when a claim to benefits under the Act is made, investigate the claim and afford appropriate relief under Section 4(1) (a) to (d) of the Act as the case may be.

4. On the other hand, Miss O.K. Sridev learned Counsel for the respondent would submit that the learned District Munsif has also had in his mind the ratio decidendi of the decision, referred to above, and has come to the correct conclusion and as such the order does not become revisable under Section 115 of the Civil Procedure Code. The learned Counsel for the respondent contends that the observation of the learned District Munsif which runs as follows is correct:

This is a simple money decree, passed on 24th March, 1980, by this Court. Act XIII of 1980 came into force on 19th April. 1980. Therefore the decree in the suit was passed prior to the Act coming into farce. Further it is a money decree. Therefore the concerned Tahsildar (Debt Relief) has no jurisdiction to entertain any application under Sections 5 and 6 of Act XIII of 1980. Only the Court has power to deal with the money decree which was passed prior to the date of coming into force of the Act XIII of 1980. Hence I find that the respondent is a debtor under Act XIII of 1980. Hence this execution petition is not maintainable. For the abovesaid reasons I find that the respondent is entitled to the benefit of Act XIII of 1980, I find point No. 2 in favour of the respondent.

Referring to the above observation of the order under revision, Miss O.K. Sridevi, learned Counsel for the respondent would submit that the position of law has been properly appreciated by the learned District Munsif and it is not as if he had solely come to the decision on the basis of the income certificate issued by the Tahsildar, the copy of which is Exhibit B-l. On the other hand, a reading of the order under revision would show, according to her, that the learned District Munsif has taken into consideration the evidence of the decree-holder as P. W. 1 and the judgment-debtors as R. W. 1 and together with the same the learned District Munsif had also taken into consideration the decision arrived at by the Court of the learned District Munsif, Nagercoil in O.S. No. 844 of 1978, the copy of which judgment has been filed as Exhibit A-1 in this case.

5. Under these circumstances, it is seen that the contention of the learned Counsel for the petitioner cannot be upheld as the learned District Munsif had not arrived at a decision solely on the basis of Exhibit B-l. On the other hand, the correct position of law had been properly borne in mind by the learned District Munsif in that he has himself observed in paragraph 8 that this is a simple money decree passed on 24th March, 1980 by the Court and the Act XIII of 1980 came into force on 19th April, 1980 and therefore, the decree in the suit was prior to the Act coming in to force, Therefore, bearing in mind the ratio decidendi of the decision referred to above as well as relevant provisions of the said enactment together with the date of commencement of the Act XIII of 1980, the decision in the order under revision had been arrived at. Therefore there is no infirmity in the order. The Civil Revision Petition is dismissed. Under the circumstances, there is no order as to costs.


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