The burden of proving that the defendant is not entitled to the protection under the Act is on the creditor-plaintiff.

CHANDRASHEKHAR, CJ.

( 1 ) THIS revision petition has been referred to a Division Bench by jagannatha Shetty, J as he felt that the question involved in this petition relates to the scope of Sec. 7 of the Karnataka Debt Relief Act, 1976 (hereinafter referred to as the 'act') and that that question is of considerable importance and will be raised in many cases.

( 2 ) THIS is a defendant's revision petition against the order of the civil Judge who rejected the application, LA. No. 3, made by the defendant praying that the plaintiff might be directed to lead evidence on additional issue No. 5. That issue reads:"does the defendant prove that hq is a debtor as defined under the act and if o, is he not entitled to the protection of the aforesaid. Act?"

( 3 ) THE learned Civil Judge held that issue had been rightly framed, that as such, under Sec. 7 of the Act it was for the defendant to prove initially that he was a debtor as defined in the Act and that then it was for the plaintiff to prove that he (the defendant) was not entitled to the benefits under the Act. In that view, the learned Civil Judge directed the defendant to adduce, first, evidence on that issue. CRP. 1795 of 1976.

( 4 ) IN this revision petition, Sri S. M. Hegde, learned Counsel for the petitioner, contended that the non-obstante clause in Sec. 7 provides that the burden of proving that the defendant is not entitled to the protection under the Act, is on the creditor-plaintiff and that, hence, the learned civil Judge was in error in holding that such burden of proof wa,s on the defendant.

( 5 ) THE question on whom is such burden of proof, is no longer res integra in view of the ruling of another Division Bench of this Court in ganesh Bisto Desai v. Nagesh Bisto Desai, (1977) 2 Karlj. 476. There, the Division Bench observed at page 477 :"to be entitled to relief under the Act, appellant must show that two conditions coalesce. The first is that they must show that they are debtors by the statutory standard. Secondly, they must show that the transaction respecting which they claim relief is, and the liability the discharge of which they seek arises out of, a 'debt advanced'. "however, Sri Hegde contended that the aforesaid observations of the division Bench were obiter dicta since it was not necessary for the division Bench to decide that question in that case.

( 6 ) IN Ganesh Bisto Desai's case, (1) the material facts; were these: the decree holder had taken out execution proceedings for realising costs awarded under a decree. The judgment-debtors filed objections as to executability of the decree against them on thei ground, that they were 'debtors ' within the meaning of clause (c) of Sec. 3 of the Act and that hence their liability under the decree must be deemed to have been wholly discharged. The executing Court had held that they were not 'debtors' within the meaning of Sec. 3 (c) of the Act. The correctness, of that finding was assailed in the appeal which was ultimately heard by the Division bench. It was contended for the decree holder that even if the judgment- debtors were 'debtors' within the meaning of Sec. 3 (c), in order to be entitled to any relief under the Act, they had also to show that their liability was in respect of a 'debt advanced' as provided in Sec. 4 of the Act and that the costs awarded under a decree could not be regarded as a debt advanced. The Division Bench upheld the contention that costs awarded in the suit could not be regarded as 'debt advanced' within the meaning of Sec. 4 of the Act and, that, hence, the liability to pay costs was not wiped out by Section 4 of the Act.

( 7 ) THERE is considerable force in the contention of Sri Hegde that when once the Division Bench held that costs awarded under a decree could not be regarded as 'debt advanced', there was no need for it (the division Bench) to go into the question of burdlen of proof under Sec. 7 of the Aot. Even, if the aforesaid observations of the Division Bench were obiter di

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