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BABU LAL versus A.D.J. & OTHERS

High Court of Judicature at Allahabad

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Babu Lal v. A.D.J. & Others - WRIT - C No. - 2007 of 1987 [2007] RD-AH 14498 (27 August 2007)

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE AT ALLAHABAD

Judgment Reserved on 25.7.2007

Judgment Delivered on 27.8.2007

Court No. 28

Civil Misc. Writ Petition No. 2007 of 1987

Babu Lal (since deceased) by LR.s. Mahendra Pratap Singh & Ors.

Vs.

The Additional District Judge, Mirzapur & Ors.,

*********

Hon. Dilip Gupta, J.

This petition seeks the quashing of the order dated 15th July, 1985 passed by the learned Munsif by which the objections filed by the heirs of the judgment-debtor in Execution Case were allowed. The petitioner has also sought the quashing of the judgment and order dated 16th January, 1987 passed by the Revisional Court by which the Revision filed by the decree holder was dismissed.

The facts, as they emerge from the pleading of the parties, indicate that one Girja Prasad took two different loans from Babu Lal. The petitioner who has since been substituted in this petition by his sons instituted Original Suit No. 8 of 1968 and Original Suit No. 392 of 1968 for recovery of the loan amount. These two suits were decreed on 22nd September, 1969 and 14th April, 1969 respectively and the decrees were put into execution. The cases were registered as Execution Case No. 26 of 1972 and Execution Case No. 81 of 1970 respectively.

In execution case no. 26 of 1972 agricultural plot nos. 104, 142/3, 146, 147, 145, 114, 122, 78 and 141 belonging to Girja Prasad were attached on 16.3.1972. In Execution Case No. 81 of 1970 agricultural plot nos. 142, 165/3, 165/4, 120, 146, 78, 141, 147, 121, 122, 110, 85, 114, 128, 136, 149, 168, 201, 79, 81, 85, 142, 145 and 165 belonging to Girja Prasad were attached on 6.8.1970.

Aditya Prasad and others filed objection under Order 21 Rule, 58 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'C.P.C.') in the above execution cases. The pedigree was given as below:-

Hira

Chhabinath Girja Nand Arjun

Ram Asre

Aditya Prasad Ram Chandra Namvar Amarnath Siddharth Vikram

In Execution Case No. 26/72 Aditya Prasad and others claimed plot nos. 104, 145, 146 and 147 as their exclusive plots. In execution case no. 81 of 1970 they claimed plot nos. 120, 146, 78, 141, 147, 121, 145 and 104 as their exclusive plots. The above objections under Order 21 Rule 58 C.P.C. in the two Execution Cases were rejected on 29.8.1977 and 27.9.1976 respectively.

The appeal filed by respondent nos. 3 to 10 against the orders rejecting their objections were also dismissed by the learned District Judge on 11th May, 1981. This was not the end of the matter. Aditya Prasad and his five brothers also filed Suit No. 338 of 1976 and Suit No. 171 of 1975 under Order 21 Rule 63 CPC claiming exclusive rights in certain plots. Both the suits were dismissed on 3rd March, 1982.

Ram Ashray son of Arjun and Vikram son of Chabinath also filed objection in Execution Case No. 81 of 1970 on 30th March, 1982 with a prayer that the execution be struck off since the debt stood discharged under the provisions of U.P. Debts Relief Act, 1977 (hereinafter referred to as the ''Act') as Girja Prasad, judgment-debtor was a marginal farmer and his sole source of livelihood was agriculture. Likewise, objection was also filed in Execution Case No. 26 of 1972 on the same ground. The defence taken by Babu Lal, the decree holder, was that Girja Prasad was not a marginal farmer and in any case the benefit of the provisions of the Act was not available to the heirs of the judgment debtor as the original judgment-debtor Girja Prasad had not filed any objection under the Act in his life-time. It was further pleaded that the objectors had not raised the above plea in their objections filed under Order 21 Rule 58 and, therefore, the objections were barred under Order 2 Rule 2 CPC. The learned Munsif allowed the objections and two revisions were filed against the said orders and both the revisions were allowed with a direction to the learned Munsif to decide as a preliminary point whether the judgment-debtors were entitled to the benefit of the Act.

Upon remand, the Executing Court again allowed the objections filed in Execution Case No. 81 of 1970 and Execution Case No. 26 of 1972 by the orders dated 15th July, 1985 holding that the judgment-debtor Girja Prasad was alive on the date of commencement of the Act and, therefore, the objectors could claim the benefit of the above Act. It was further held that the principle livelihood of the judgment-debtor Girja Prasad was agricultural income and as he owned more than one hectare but less than two hectares of agricultural land he was not a marginal farmer but has a small farmer and, therefore, the debt was liable to be discharged under the Act and the Execution cases could not proceed.

Civil Revisions were filed against the aforesaid orders being Civil Revision No. 78 of 1985 and Civil Revision No. 79 of 1985. Both the Civil Revisions were dismissed by the judgment and order dated 16th January, 1987. The Revisional Court held that the objectors are the legal representatives of the deceased judgment-debtor and their liability to the decree would be according to the share of the property of the judgment-debtor inherited by them and as such they were not personally liable under the decree. The judgment-debtor Girja Prasad was alive on the date of commencement of the Act. The Revisional Court also observed that the applicability of the Act has to be considered with respect to the status of the original judgment-debtor and not according to the status of the objectors. After having made the aforesaid observation, the Revisional Court proceeded to examine the correctness of the finding recorded by the learned Munsif that the judgment-debtor Girja Prasad was a small farmer within the meaning of the Act and after having confirmed this finding of the learned Munsif held, on the basis of Section 17 of the Act, that since no application was filed by the decree holder under Section 17(2) of the Act, the debt stands discharged under Section 21(2) of the Act. The revisions were, accordingly, dismissed.

These two orders of the Executing Court and the Revisional Court have been impugned in the present petition by the decree-holder who has since been substituted by his heirs.

I have heard learned counsel for the petitioner and the learned counsel appearing for the respondents.

Learned counsel for the petitioners submitted that the specific case taken up by the heirs of the judgment-debtor in the two Execution Cases No. 81 of 1970 and Execution Case No. 26 of 1972 was that the judgment-debtor was a marginal farmer but both the Courts below have carved out a new case holding that the judgment-debtor Girja Prasad was a small farmer and treating the judgment-debtor to be a small farmer benefit has been given to the objectors. He further submitted that in any view of the matter, the heirs of the judgment-debtor could not have taken the benefit of the Act as such a benefit was available only to the original judgment-debtor. Learned counsel also challenged the finding recorded by both the Courts below that the judgment-debtor Girja Prasad was a small farmer.

Learned counsel for the respondents, however, submitted that the orders passed by both the Courts below do not suffer from any infirmity and as the judgment-debtor was found to be a small farmer under the provisions of the Act and no application had been moved by the decree holder within the stipulated time under Section 17(2) of the Act, the debt stood discharged under Section 21(2) of the Act.

In order to properly appreciate the contentions advanced by the learned counsel for the parties, it would be necessary to quote the relevant provisions of the Act and the same are as follows:-

"2. Definitions.-In this Act-

..................

(4) "creditor" means a person from or in respect of whom a debtor or a small farmer has borrowed or incurred a debt, and includes the heirs or assignees of such person

(5) "debt" includes all liabilities owing to a creditor in cash or kind, secured or unsecured, payable by a debtor or a small farmer under a decree or order of a civil court or otherwise, and subsisting on the date of commencement of this Act, whether due or not;

(6) "debtor" means a landless agriculturer, labourer, a marginal farmer, a rural artisan or an urban worker who owes a debt, but does not include a small farmer;

..............

(9) "marginal farmer" means a person residing in a village who on the date of commencement of this Act, holds agricultural land not exceeding one hectare of unirrigated land and whose principal means of livelihood is income from agricultural land or by manual labour on such land, and includes a person cultivating land as an asami or as a share-cropper;

....................

(11) "small farmer" means a person residing in a village who, on the date of commencement of this Act, holds unirrigated land exceeding one hectare but not exceeding two hectares, and whose principal source of livelihood is income from agricultural land or by manual labour on such land and includes a person cultivating land as an asami or as a share-cropper;

4. Discharge of debts.- Notwithstanding anything contained in any law for the time being in force or in any contract, decree or other instrument having force by virtue of any such law and save as otherwise expressly provided in this Act-

(a) every debt, together with any interest, payable on the date of commencement of this Act, by a debtor whose annual household income does not exceed two thousand and four hundred rupees, shall with effect from the date of such commencement, be deemed to be wholly discharged;

........................

17. Application for determination of debt.- (1) A small farmer may, within a period of two years from the date of commencement of this Act apply to the Debt Settlement Officer for the area in which such farmer resides or holds any land for determination of his debts.

(2) Unless the small farmer has already made an application under sub-section (1), any of his creditors may likewise, make an application to the same authority to which, and in the manner in which, the small farmer might have applied under that sub-section for the determination of the debt in question.

(3) Every application under this section shall be signed and verified by the applicant in the manner prescribed by the Code of Civil Procedure, 1908 for signing and verification of plaints:

Provided that in the case of an application under sub-section (2), the creditor shall be bound to verify the contents only in so far as they are known to him.

(4) If applications are made to more than one authority in respect of the same debt, such application shall, subject to such rules as may be made in this behalf, be transferred to and dealt with by one authority.

19. Determination of debt.- (1) On receipt of the application under Section 17, the Debt Settlement Officer shall, after giving an opportunity to the parties concerned to appear and be heard, determine in respect of the debt in question the amount of the principal and the amount of interest [at the rate specified in sub-section (2) of the Section 9] up to the date of commencement of the Act.

(2) Every decision of the Debt Settlement Officer determining the amount of debt under sub-section (1) shall, subject to the result of an appeal under Section 23, be final and shall not be called in question in any civil court.

(3) The produce to be followed by the Debt Settlement Officer in any proceeding under this Chapter shall be such as may be prescribed.

21. Excess amount of debt to be discharged- (1) Every debt in excess of the amount determined under Section 19 to be payable by a small farmer shall with effect from the date of such determination, stand discharged and shall not be recoverable.

(2) Every debt payable by a small farmer on the date of commencement of this Act in respect of which no application is made under Section 17 shall, on the expiry of the period referred to in sub-section (1) of that section and subject to the provisions of Section 33, stand discharged and shall not be recoverable."

It is, therefore, clear from a bare perusal of Section 4(a) of the Act that every debt, together with any interest payable by a debtor whose annual household income does not exceed two thousand four hundred rupees, shall be deemed to be wholly discharged. A debtor has been defined to mean a landless agriculturer, labourer, a marginal farmer, a rural artisan or an urban worker who owes a debt, but does not include a small farmer. Thus, a small farmer is not protected under Section 4 of the Act. Chapter IV of the Act containing Sections 16 to 24 deals with scaling down of debts of small farmers. Under Section 17(1) of the Act, a small farmer can apply to the Debt Settlement Officer within a period of two years from the date of commencement of the Act for determination of his debts. Section 17(2) provides that unless the small farmer has already made an application, any of his creditors may make an application for the determination of the debt. Section 19 of the Act provides that the Debt Settlement Officer, after giving opportunity to the parties concerned, may determine the amount of principal and the amount of interest up to the date of commencement of the Act. Section 21 of the Act provides that every debt in excess of the amount determined under Section 19 to be payable by a small farmer shall stand discharged. Section 21 (2) of the Act provides that every debt payable by a small farmer on the date of commencement of the Act in respect of which no application is made under Section 17 shall, stand discharged and shall not be recoverable.

It is in the light of the aforesaid provisions that the contentions of the learned counsel for the parties have to be examined.

The Executing Court as well as the Revisional Court both came to the conclusion that the judgment debtor was a small farmer and since the decree holder had not filed any application under the provisions of Section 17(2) of the Act, the debt stood discharged and could not be recovered in view of the provisions of Section 17 (2) of the Act.

The first contention of the learned counsel for the petitioner was that the judgment debtor was not a small farmer and so the question of discharge of the debt under the provisions of Section 21(2) of the Act did not arise. In this connection it was contended that the specific case taken up by the heirs of the judgment-debtor in their objections before the Executing Court was that the original judgment-debtor was a marginal farmer and, therefore, the Courts below could not have carved out a case not taken by them that the original judgment-debtor was a small farmer. Paragraph 7 of the judgment of the Revisional Court clearly shows that the objection that had been raised by the heirs of the original judgment-debtor was that Girja Prasad was a marginal farmer and his source of livelihood was agriculture and owned less than one hectare of unirrigated land on the date of commencement of the Act. This contention was rejected and it was held that the original judgment-debtor Girja Prasad was not a marginal farmer, but surprisingly the Executing Court proceeded to examine whether the judgment-debtor Girja Prasad was a small farmer and ultimately held that he was a small farmer. This was not the case taken up by the heirs of the judgment-debtor. The Revisional Court also proceeded to examine whether the original judgment-debtor was a small farmer and confirmed the finding of the Executing Court. There is, therefore, force in the contention of the learned counsel for the petitioner that a new case could not have been carved out by both the Courts below. Learned counsel appearing for the respondents did not dispute this position but what he contended was that the finding recorded by the Executing Court and the Revisional Court that the judgment debtor was a small farmer does not suffer from any infirmity. The objections filed by the heirs of the judgment-debtor should, therefore, have been rejected by the Executing Court.

It is, therefore, not necessary to examine the other contentions advanced by the learned counsel for the petitioner that the heirs of the judgment debtor could not have taken up the objections when the judgment debtor was alive on the date the Act came into force or that the debt could not have been discharged under the provisions of Section 21(2) of the Act.

The Writ Petition, therefore, succeeds and is allowed. The order dated 15th July, 1985 passed by the Executing Court in Execution Case No.81 of 1970 and Execution Case No.26 of 1972 as well as the order dated 16th January, 1987 passed by the Revisional Court are set aside and the objections filed by the heirs of the judgment debtor are rejected.

Date: 27.8.2007

NSC


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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