Dhananjaya Padayachi vs Vanamail Ammal

Swamikkannu, J.—This is a civil revision petition filed against the order in Execution Petition No. 650 of 1980 in Original Suit No. 1407 of

1974 on the file of the Court below, by the judgment debtor, who is the revision Petitioner herein. He contended before the executing Court that

he had filed an application before the Tahsildar under the provisions of the Tamil Nadu Act XIII of 1980 for discharge of the debt by virtue of the

provisions of the said Act, and that he was entitled to the benefit of the Act and the decree should therefore be deemed to have been discharged.

The executing Court held that the judgment-debtor, though he had contended that he was entitled to the benefits of Act XIII of 1980, had not

proved the said contention by means of any oral or documentary evidence. The lower Court, therefore, rejected the said contention and ordered

settlement of terms in execution. The said order is now questioned in this civil revision petition. The contention of Mr. T.V. Bal Krishnan, learned

Counsel for the revision Petitioner, is that the reasoning given by the Court below for its order is incorrect and that the other reasons giver by the

executing Court for ordering execution to be proceeded with are equally erroneous and unsustainable. The petition for attachment and sale of the

immovable properties in execution of the decree in Original Suit No. 1407 of 1974 had to face the contention of the judgment-debtor that since he

was entitled to the benefits of Act XIII of 1980 the decree ought to be held to have been discharged under the provisions of the Act. Though the

revision Petitioner had filed a counter to the above effect, no oral evidence had been adduced by him before the Court below in support of the

case put forward by him and he had not proved as to how the decree should be deemed to have been discharged under the provisions of the Act.

The lower Court has observed that the judgment-debtor had not produced any document to show that be had filed a petition before the Tahsildar

for discharge of the decree debt due by him by virtue of the provisions of the Act. Hence the lower Court held that the contention of the judgment-

debtor (revision Petitioner) that the decree debt should be deemed to have been discharged under the Act could not be safely acted upon and

accordingly the Court directed further proceedings in execution by ordering settlement of terms.

This Court has already incorporated the grounds taken in this revision petition. In so far as debtors making applications to the Tahsildar for

return of moveable properties pledged by them the provision u/s 5 of the Act are exhaustive. The relief from indebtedness is dealt with u/s 4 of this

special enactment which has emerged from the State Legislature to provide relief to the people who suffer from a heavy debt burden on account of

the usurious practice of pawn broker, money-lenders and other non-institutional sources of credit. Section 3 of the Act defines comprehensively

terms such as annual household income, creditor, debtor, debt etc. Section 5 of the Act already stated, deals with the debtors making applications

to the Tahsildar for return of the properties pledged by them Sub-clause (a) of Sub-section (1) of that section provides for a debtor, for purposes

of obtaining return of the properties pledged by him, making an application before the Tahsildar, supported by an affidavit sworn to by him stating

that he is entitled to relief u/s 4 of the Act and he is required also to produce a certificate from the prescribed authority as to the annual household

income derived by him. Section 6 of the Act deal with a debtor making an application to the Tahslidar for release of mortgaged property in similar

manner as provided u/s 5. Section 7 provides that every order of the Tahsildar u/s 5 or u/s 6 of the Act shall, subject to appeal u/s 8 of the Act, be

final and shall not be called question in any Court. Section 8 provides for appeal against the order of the Tahsildar referred to above, to such

authority, as may be specified by the State Government in that behalf. Section 12 exempts from the purview of the Act, certain categories of debts

and liabilities, such as, any rent due in respect of any property including agricultural let out to a debtor, any amount recoverable as of land revenue,

any revenue, tax or cess payable to the Central of State Government or to a local at the city, any liability arising out of a breach of trust or any

tortious liability, any liability in respect of wages etc., any liability in respect of maintenance under a decree of Court etc., etc.

A perusal of the various provisions of this special enactment, namely, Act XIII of 1980, which has come out of the auvil of the State Legislature,

shows that the Tahsildar has to be approached by a debtor, who comes within the purview of this enactment, for getting a mortgaged property

released by virtue of the provisions of Section 6. It is this that is referred to by the executing Court in its order now under revision before me.

The point for consideration in this revision before me is whether the approach made by the executing Court is correct or whether the order of

the executing Court, based as it is, on the reasoning given in its order, is revisable under the provisions of Section 115 of the Code of Civil

Procedure, by this Court.

As earlier stated, no oral or documentary evidence has been let in by both sides before the executing Court. Mr. Bal Krishnan, learned Counsel

for the revision Petitioner, would, however, urge that the matter may be remitted back to the executing Court so as to give an opportunity to the

revision Petitioner judgment-debtor to show that he has proved before the Tahsildar the discharge of the deft due by him. Mr. Sampath learned

Counsel for the Respondent (decree-holder) vehemently opposes this request of the revision Petitioner and contends that it is not in the interests of

justice that this matter be remitted back to the lower Court. The revision Petitioner has stated in specific terms in the counter before the executing

Court that he had filed a petition before the Tahsildar wherein he had claimed benefits under special enactment and Mr. Bal Krishnan, learned

Counsel, submits that the interests of justice do require an opportunity being given to the revision Petitioner to show that he had taken appropriate

steps to get the relief by way of benefits under the enactments and that such a course would be only in accordance with the very object of the

enactment as would be clear from the preamble to it and that the mere fact that no evidence had been let in regarding this aspect before the lower

Court will not preclude the revision Petitioner from getting the benefits granted by the special enactment. Mr. Sampath contends that the revision

Petitioner had already been granted an opportunity to prove his case of having filed a petition before the Tahsildar for relief under the Act and that,

having failed to avail himself of that opportunity, it does not lie in the mouth of the revision Petitioner to ask for further opportunity by way of a

remand of the case to the executing Court. I quite understand the feeling of the Respondent herein, as put forth by Mr. Sampath, However, when

an enactment confers a benefit to the debtor and inasmuch as the debtor has in specific terms stated in the counter that he has approached the

Tahsildar for the relief under the provisions of the enactment, it is but just and proper that he is given another opportunity to prove his case by

letting in evidence before the executing Court. Both parties rely on the only reported decision of this Court in Perumal v. Kuppanna ILR (1982) 1

Mad. 112 which deals with the scope of the enactment.

Therefore, considering the peculiar circumstances of this particular case, this Court feels that it is in the interests of justice to remit the matter to

the executing Court for fresh disposal after giving opportunity to both sides to put forth their respective cases and let in evidence, if any, in support

thereof. In this view, the civil revision petition is allowed and the matter is remitted back to the executing Court for fresh disposal as observed

above. I here will be no order as to costs. The executing Court will take the matter on file and dispose of the same soon after the receipt of the

records from this Court.