ORDER
Vasanthakumar, J.
The petitioner in this Writ Petition has sought for quashing of the order dated 23.11.1992 passed in K.D.R.RA.2/89-90 by the Deputy Commissioner, Belgaum.
1. Before adverting to the contentions advanced, reference to previous proceedings pending between the parties on record would throw much light to decide the issues involved. One Bhima son of Rama Hiralkodi on 30.4.1975 had mortgaged an extent of 2 acres and 10 guntas comprised in Sy.No.458 situate in Kanagala Village in favour of one Shankar son of Jotiba Kire Kodi for a sum of Rs. 8,500/- and in pursuance of the same possession of the lands in question was delivered to Shankar. Subsequently, Bhima filed an application under the provisions of the Karnataka Debtors Relief Act, 1976 seeking relief from indebtedness, proceeding being numbered as KDR/HKP. 445 dated 25.11.1976, the Taluka Magistrate passed the order, the operative portion being:-
'At the outset, it is admitted by the petitioner himself that he owns 7 acres 20 guntas of land excluding the suit land. So, the petitioner is not a small holder under the Act. This fact is evidenced by the extracts from R. of Rs. of the lands of the petitioner produced by the opponent. Since the petitioner is not a Small Holder, he is not entitled to for any relief under the provisions of the K.D.R.Act. Therefore, the petition will have to be and is hereby dismissed'.
Subsequently, Bhima filed another application dated 24.7.85 before the Taluka Executive Magistrate for his being considered as Debtor and for consequential order of discharge of mortgage loan, the proceeding came to be numbered as KDR/SR 1415 and on 24.9.85, Taluka Magistrate passed the order, the operative portion being:-
'The land 2 acres 10 guntas standing in the Records of Rights as mortgage in possession in the name of the respondent should be restored to the petitioner immediately. The respondent may seek redress for getting Rs. 17,900/- advanced as further loan, approaching competent Court of law.'
Shankar filed a Writ Petition against the order dated 24.9.1985 seeking quashing of the order, proceeding being numbered as W.P. 15466/85 and this Court on 5.12.1985 passed the following order:-
'Rule is, made absolute, the Writ Petition is allowed, the impugned order dated 24.9.1985, Annexure-A is quashed. The matter is remitted to the Taluka Executive Magistrate, Hukeri, with a direction to hold a fresh enquiry and pass appropriate orders in accordance with law after affording opportunity to the parties. No costs.'
2. The Taluka Magistrate in pursuance of the order passed by this Court in W.P.No. 15466/85, held an enquiry and on 14.10.86 passed the following order:-
The above said order dated 14.10.1986 was challenged by Shankar in Writ Proceedings numbered as W.P. 18664/86. In the Memorandum of Writ Petition numbered W.P. 18664/86, Shankar has averred the following facts:-
1. That on 7.7.83 Bhima having executed an agreement of sale in favour of Shankar to an extent of 3 acres 10 guntas comprising the lands, the subject matter of mortgage and as such by virtue of past performance he has been in possession and the mortgage having been redeemed.
2. Sale of an extent of 6 acres 29 guntas of land situate in Kangala village by Bhima in favour of Mallappa Kallappa Dhongi for a sum of Rs. 60,000/- under 2 registered documents of sale.
3. Purchase of an extent of 1 acre 4 guntas comprised in Sy.No. 457/4B02 on 21.6.1985 by Bhima.
4. Bhima being the owner of house Nos. 188, 249 and 250 of Kangala Village stating the above facts Shankar-petitioner in the W.P.No. 18664/86 challenged the order dated 14.10.1986 passed by Taluka Magistrate. This Court on 23.6.1989 while allowing the Writ Petition made certain observations. The relevant observations being found at para-6. It reads:- 'In the result, for the foregoing reasons, the Writ Petition is allowed and the rule made absolute. The impugned order is quashed. Respondent-1 is directed to consider and give a finding on the preliminary issue whether or not the application of respondent-2 filed under the Act is barred by limitation as urged by the petitioner. If respondent-1 comes to the conclusion that, on facts and in law, the application is barred by limitation, it is not necessary for him to go into other questions, but if he comes to the conclusion that the application is not barred by limitation, a fresh enquiry on all the points in issue and the contentions that may be raised by the contending parties shall be gone into and findings given after affording a reasonable opportunity of hearing to both the parties and dispose of the case in accordance with law within a time limit of three months from the date of receipt of a copy of this order. A copy of this order shall be communicated to respondent-1 forthwith. The parties to the case are directed to appear before respondent-1 on 17.7.1989. The learned Counsel appearing for the parties shall intimate the date of hearing to the respective parties.
Once again Taluka Magistrate in pursuance of the order made by this Court in W.P.18664/86, held an enquiry, and after assessing the materials on record on 3.10.89 passed the following order, the operative portion being:
'In view of the facts discussed supra, the application of the respondent seeking redressal under K.D.R. Act requires to be rejected and accordingly it is rejected'.
The main grounds that prevailed on the Taluka Magistrate to dismiss the application dated 24.7.85 filed by Bhima being that it was filed beyond the prescribed period under the Act.
2. Section 5 of the Karnataka Debt Relief (Amendment) 1981 as amended by Act 17/81 reads. Section 5(1):-
'A debtor referred to in Clause (f) of Section 3 may on or before the 31st December 1981 make an application to Asst. Commissioner having jurisdiction over the area within which the mortgaged property is situate for an order releasing the mortgage property and for the grant of certificate of redemption'.
Since the application by Bhima filed on 24.7.85 was being beyond 3 years six months, the Taluka Magistrate dismissed the same as barred by time. The other ground which prevailed on the authority was that since the application filed by Bhima having already been rejected in KDR/HKR/445 on 25.11.76 under 1976 Act, it was not open for him to reagitate the same under 1980 Act.
3. Aggrieved against the order dated 3.10.89, Bhima preferred a revision under Section 14 of the K.D.R.Act 1980 before the Deputy Commissioner, proceeding being numbered as KDR RA 2/89-90 and on 23.11.92, the Deputy Commissioner confirmed the order dated 3.10.89 passed by the Taluka Magistrate. Aggrieved by the order dated 23.11.92 passed by the Deputy Commissioner this Writ Petition has been filed.
4. The main grounds by the petitioner Bhima in this Writ Petition being:-
1. That the order passed by Taluka Magistrate on 24.9.1985 as being valid in view of the enlarged definition of Debtor under Act 29/80 and dismissal of his application as being passed by the authorities subsequently as being bad in law and without jurisdiction.
2. Since both the Acts namely Act 25/76 and Act 29/80 are being in operation, dismissal of the application under the Act 25/76 as being not a bar for considering another application under Act 29/80 which has enlarged definition of Debtor and only decision arrived under Act 25/76 cannot operate as either estoppel or resjudicata for considering fresh application under Act 29/80.
3. The authorities have exceeded in their jurisdiction in deciding other extraneous matters such as plea of limitation beyond the order of remand.
4. That the authorities have not properly adverted their mind to the effect of the saving clause under Act 29/80.
5. That the authorities erred in not recording any reasons on his application filed under Section 5 of the Limitation Act.
4. Points noted above if summarised would result in the following conclusions.
In the State of Karnataka three main Legislations cover the relief as to debts. The first one is Karnataka Agricultural Debtors Relief Act, 1966 having come into force on 1.4.69 covers debts which were in existence on the date of 1.4.69. The second Act is Karnataka Debt Relief Act 1976 having come into force on 21.10.1975 covers debts which were in existence on 21.10.1975.
The Third Act is Karnataka Debt Relief Act 1980 having come into force on 15.11.79 covers debts in existence on that date. What is to be noted is that Act No. 25/76 has not been repealed by Act 29/80.
Section 7 of the Act No. 25/76 throws burden of proof that they were debtors on the judgment-debtors. Section 6(2) of 1980 Act throws the burden on the creditor to show that the person contending that he is a debtor under the Act not a debtor. This provision is not applicable to a proceeding under Section 25 of 1976. Section 6(2) does not enact merely procedure but creates an obligation on the creditor. Hence, it is only prospective in operation and not retrospective. Further Section 15(1) of 1980 Act specifically saves the operation of Act 25/76. In SEBASTIN ANTONY v. RAMANAND BHATT, ILR (Karnataka) 1982, 73 : 1981 (2) KLJ 409, this Court has observed at paragraphs 31 and 32. They read:-
'Para-31: Thus, it is obvious that the Legislature wanted to give relief to such debtors who incurred loans after the coming into force of the 1976 Act and for such debts which were in existence on the date of the application of Act No. 29/1980.
Para-32: Thus, as stated above, Section 15(1) of Act No. 29/1980 specifically saves the operation of Act No. 25/76 in all respects. That does mean that if a contending debtor is held not a debtor under Act No. 25 of 1976 and if his debts are existing on the date of commencement of Act No. 29 of 1980, he is disabled to apply for relief under Act No. 29 of 1980. If the otherwise satisfies the conditions stipulated in Act No. 29 of 1980, he would be at liberty to seek relief under Act No. 29/1980 because all that is necessary for the application of the provisions of Act No. 29/1980 would be that the debt should be existing on the date of the commencement of the said Act and the debtor must satisfy the conditions stipulated in the said Act'.
The sum and substance would be that the debt must be existing on the date of commencement of the said Act and debtor must satisfy the conditions stipulated in the said Act.
5. It is to be noted that if any matter is pending consideration under Act 25/76, when the Act 29/80 came into force then in that event matter has to be enquired into under Act 25/76 itself in view of the saving clause. If the debt is subsequent to Act 25 of 76 and existing as on the date when Act 29/80 came into force, then in that event debtor can take advantage of the provisions of the Act 29/80. When once the party avails of remedy under Act 25/76, and the same is enquired into and decided on merits, then it is not open for the debtor to make a fresh application under Act 29/80, as though the debt is existing as on the date when Act 29/80 came into force. In Y.P. PAUL v. Y.L. PATIL, AIR 1977 SC 392 the Supreme Court has observed:-
'No appeal was filed against that judgment and it has became final. It is well settled that principles of res judicata can be invoked not only in separate subsequent proceedings they also get attracted in subsequent stage of the same proceedings'.
The petitioner sought statutory discharge and the authorities exercised their powers conferred under the Act in force. If the petitioner had not invoked the provisions of the Act 26/1976, and as on the date when Act 29/80 came into force, and if the debt had been existing then it would have been open for the petitioner to take advantage of the provisions of the Act 29/80. Even otherwise, if petitioner's application seeking relief of indebtedness under Act, 25/76 was pending, as on the date when Act of 29/80 came into force, then it would be open for debtor to take advantage of the provisions of Act 29/80 and not in cases where authorities have exercised their powers and decided the matter under Act 25/76. The above view is in accordance with ratio decidendi of T.S. KOTAGl v. TAHSILDAR GADAG, : AIR1985Kant265 and Sebastian Antony v. Ramananda Bhat.
6. As such, the contentions advanced by the petitioner regarding his right to approach the authorities under Act 29/80 inspite of the finding recorded in a proceeding initiated under Act 25/76 cannot be legally accepted since there was neither the matter pending consideration under Act 25/76 nor a debt existing as on that date of invoke provisions of Act No. 29/80.
7. In the instant case, it would be futile to discuss the merits of the petitioner's cause to get himself entitled to the benefits under Act 29/80 as the petitioner did not file the application under Act 29/80 on or before 31.12.81 under Section 5(1) of the Act 290/80. Admittedly, the petitioner has filed the application on 24.7.1985 which is beyond the prescribed period to invoke the benefits under 1980 Act, The contentions advanced by the petitioner that the authorities having erred to exercise their discretionary powers under Section 5 of the Limitation Act would not arise for any consideration since under the Act, there is no provision conferring powers to the authorities concerned either to condone the delay or to exercise its powers under Section 5 of the Limitation Act. It is to be stated that the limitation prescribed and restrictions imposed under the Act cannot be said to be unreasonable. In FATCCHAND HIMMATLAL v. STATE, : [1977]2SCR828 , the Supreme Court while upholding the validity of Maharastra Debt Relief Act, 1976 has observed that restrictions imposed under that Act as being reasonable, the provisions which are in substance the same as envisaged under Act 25/76 and Act 29/80.
8. It is to be stated that if statutory period expires before Action is brought, the petitioner's right is not extinguished. He is merely deprived of his remedies of Action and set-off. Reasons of public policy has dictated the enactment of law of limitation, Limitation Act has expressly declared that whether the defence of limitation be pleaded or not the Court is bound to give effect to law. Bar of limitation cannot be waived and proceeding must be dismissed if brought after the prescribed period of limitation, The provisions of Section 3 of the Limitation Act are peremptory and impose a duty on the Court or authorities to dismiss the application as the case may be which is out of time, unless the delay that could be condoned under Section 5 of the Act or under any other provisions of the law for the time being in force. Section 3 of the Limitation Act is mandatory and leaves no room for equitable considerations, since it bars the remedy but does not destroy the right. Jurisdiction has to be exercised only within the amplitude of jurisdiction conferred by the statute and authority is not entitled to go outside those provisions and in effect to legislate for itself or arrogate or clutch at the jurisdiction which it does not really possess under the statute. Whenever a statute confers jurisdiction under certain particular conditions, it cannot be understood or inferred to confer jurisdiction also in cases which do not fall within the ambit of the conditions laid down in the statute. In view of the same, contentions advanced by the petitioner that the authorities erred in not exercising jurisdiction to condone the delay under Section 5 of the Limitation Act also cannot be legally accepted.
9. Sri B. Jigijinni, learned Counsel for the petitioner, with his legal expertise and resources at command, contended that the authorities having exceeded their jurisdiction in dismissing the application on the ground of limitation when that was not the case either pleaded or argued at the time when this Court in W.P.No. 15466/85 ordered remand with a direction to hold fresh enquiry. He invited this Court's attention to the legal principles enunciated in the following cases:-
1. ILR 2 Bom 120 - Morabin Putalji v. Gopal bin Satu
2. AIR 1921 PC 23 - Raja of Ramnad v. Velusani Tewar
3. : AIR1954Cal506 - Newton v. Official trustee
4. 16 LR 492 (Mys) - Central Karnataka Motor Service Ltd v. State of Mysore
5. 1967(2) Mys.L.J. 637 - Channaiah v. R.T.A.
6. 1981(2) Mys.L.J. 19 - United Medical Agencies v. Abdul Gafar Md. Sethi
7. ILR (Kar) 1982, 73 :1981(2) Kar.L.J. 409 - Sebastin Anthony v. Ramanand Bhat
8. : [1964]1SCR495 - Ittavira v. Varkey
There cannot be any dispute about the legal principles enunciated in the above cases.
But factually the contentions advanced by the petitioner over looks the order of remand dated 23.6.89 made by this Court subsequently in W.P.No. 18664/86 which is mentioned earlier. As such, there is no legal force in the contentions advanced by the petitioner.
10. The reasonings recorded and findings arrived at by the concerned authorities cannot be characterised as being without jurisdiction and perverse and it is to be stated that they are based on sound principles of law and as such circumstances do not warrant any further interference with the impugned order. Authorities are directed to give effect to the orders passed by them.
11. Accordingly, this Writ Petition is dismissed. No costs.