V. KRISHNA RAO Vs. SUB DIVISIONAL MAG. MYSORE & ORS.

JUDGEMENT

(1.) In this petition under Art. 226 of the Constitution, the petitioner hash challenged the validity of the order passed by the Sub Divisional Magistrate, Mysore Sub Division, Mysore, in KDR. 1062 of 1976-77, dated 13.8.76, Allowing the application filed by the 3rd respondent under S. 4(f) of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as the Act).

(2.) The impugned order is not a speaking order and it was also not disputed by the learned Counsel for the 3rd respondent that the order as such, cannot be sustained; therefore, the learned Counsel submitted that the impugned order be quashed and the case be remitted to the first respondent for fresh consideration. On the contrary, the learned Counsel appearing for the petitioner submitted that there is no subsisting mortgage, therefore, there is no question of remitting the case to the first respondent for fresh consideration in as much as the first respondent can exercise the jurisdiction under Sec. 4 (f) of the Act, only when there is a subsisting mortgage and not otherwise. In order to decide the contention raised on behalf of the petitioner, it is necessary to notice the following facts which are not in dispute.

(3.) The property in question is a premises bearing No. 1249, situated in Narayanasastry Road, Mysore, originally belonged to the 3rd respondent who mortgaged the same to the petitioner for Rs. 4,000 under a registered mortgage dated 15.7.1950. There was a lease back of the mortgaged premises to the 3rd respondent who failed to pay the rent. Therefore, the petitioner obtained an order for possession, in HRC No. 42 of 1951 on the file of the Munsiff at Mysore and in execution of the said order obtained possession of the premises in question in Misc Case No. 118 of 1953. Thereafter, the petitioner filed the suit bearing O.S. No. 209 of 1956 in the Court of the first Munsiff, Mysore, for recovery of arrears of rent. The said suit was decreed. In execution of the said decree, the premises in question was brought for sale and the petitioner purchased the same with the permission of the 'Court. The sale was also confirmed on 11-10-1957 in Misc. No. 223 of 1957.