1.The present revision by the decree-holder arises out of the order dated 20th October, 1978 passed by thePrl. Munsiff, Sirsi, in Execution 79/76, dismissing the Execution Petition.
2. The decree-holder had filed a suit in the year 1969 against the present Judgment Debtors ('Jdr' for short) 1 to 3 alleging that one Vishweshwar Subray Hegde was due money to him at the foot of the account opened by him in his shop. Jdr. No. 1 is the mother of the borrower, Jdrs. 2 and 3 are the brothers of the borrower, Vishweshwar. The Jdrs were sued by the plaintiff-decree holder. The decree-holder filed the suit against the Jdrs. as the L.Rs. of Vishweshwar as Vishwesnwar had died much prior to the filing of the suit in 1969. The said suit was decreed against the Jdrs. In the appeal R.A6/72, the decree was modified in. respect of the amount and the decree was passed for Rs. 4510-10 only. It was ordered to be recovered out of the share of Vishweshwar, which had come in the hands of Jdrs.
3. The decree-holder sued out execution against the Jdrs. for recovery of the said decretal amount. Jdrs. raised a contention that the borrower was a 'debtor' within themeaning of the Karnataka Debt Relief Act, 1976 and as such the debt stood wiped out. The said contention appealed to the thatMunsiff, Sirsi and he held that Vishweshwar was a 'debtor' within the meaning of the Karnataka Debt Relief Act, 1976 (For short, 'the Act') and thus the amount in question stood wiped out and ultimately he dismissed the execution. Hence, the revision by the decree-holder.
4. The main question arising in this case is whether the provisions of the K.D.R. Act would apply to a person who was not alive at the time when the suit was filed or decreed.
5. It is undisputed that Vishweshwar died long before 1969 and the suit in question was filed in 1969 to recover the amount due from the said Vishweshwar. It is also undisputed that the suit was decreed against the share of Vishweshwar in the joint family property which has come into the hands of the Jdrs. There is no personal decree against the L.Rs. or against the properties of the L.Rs.
6. Section 3(c) of the Act defines the word 'debtor' as :
' 'debtor' means :
(i) a small farmer; or
(ii) a landless agricultural laborer; or
(iii) a person belonging to the weaker sections of the people'
This definition of the word, 'debtor' makes it absolutely clear that the person claiming to be a 'debtor' must be a small farmer or landless agricultural laborer or a person belonging to the weaker sections of the people. The said definition is not illustrative but all inclusive. The definition does not indicate that it applies to the legal representatives, assignees and legatees of the borrower. If the Legislature intended that the definition should include assignees, legatees and legalrepresentatives of the borrower, it would not have failed to include the words, 'assignees, legatees and legal representatives' etc., The very fact that the Act has not included these persons in the definition shows that it would not be proper to hold that the definition of the word 'debtor' includes assignees, legatees and legal representatives also. Further, the present tense is used while defining a 'debtor' under the Act. Therefore, any person claiming to be a debtor must be alive at the time when the Act came into force. Section 3(d) defines 'landless agricultural laborer' as a person who does not hold any land and whose principal means of livelihood is manual labour on land. The very word 'is' used in Section 3(d) indicates that the person claiming the benefit of the Act must be alive at the time when the Act came into force or when the benefit of the K.D.R. Act is claimed. Therefore it is made clear that the Act is meant to apply only to the borrower personally and Section 3(d) would not be available to the L.Rs., legatees and assignees. So also the definition of 'small farmer' and the definition of 'weaker sections of the people' make it quite clear that the relief is only personal to and applies only to the borrower. It is further clear that the person must be alive to put forth such a plea, and such a plea, cannot be put forth by others on his behalf. Further Section 4 which gives the relief from indebtedness, makes the point further clear. Section 4(a) reads as :
'every debt advanced before the commencement of this Section including the amount of interest, if any, payable by the debtor to the creditor 'shall be deemed to be wholly discharged';
The words 'by the debtor' would make it absolutely clear that the person claiming the status of the debtor mutt be alive when he claims the relief. Section 4(b) reads as :
' No Civil Court shall entertain any suit or proceeding against the debtor for the recovery of any amountof such debt including interest if any'.
The Civil Courts have been prohibited from passing the decree only against the debtor. It does not include the L. Rs., assignees and legatees of the borrower. Section 4(c) reads as :
'all suits and proceedings (including appeals, revisions, attachments or execution proceedings) pending on the said date against any debtor for the recovery of any such debt shall abate ;
Therefore, this also makes it clear that the person who is entitled to the benefit of the K.D.R. Act must be alive when the suit or other proceedings are initiated.
7. in Krishnan Nair -v.- Abdu, : AIR1965Ker39 the Kerala Agriculturists Debt Relief Act (31 of 1958) came up for interpretation. Section II A (2) of the Kerala Act reads as follows :
'Notwithstanding that the period of the melpattom has not expired, the person who granted the melpattom shall, on application, be entitled to terminate the melpattom on depositing into Court one-third of the advance outstanding'.
Explanation :- For the purpose of this section 'advance out-standing' means an amount which bears to the total amount of theadvance the same proportion as the unexpired term of the melpattom bears to its full term'.
The word 'melpattom' has been defined in the said Act as :
'Melpattom means any transaction relating only to the usufructs of trees for a specific period in recoupment of an advance made orpromised'.
In para 17, the Kerala High Court states :
'In two of the cases, C.R.P. No. 1001 of 1961 and C.R.P. No. 247 of 1962 the question arises whether the right conferred by Section II-A is personal to the grantor or is available to those claiming under him, his heirs, legal representatives and assigns. The general principle is - and Section 146 of the Civil Procedure Code embodies this principle - that a statute or other law conferring rights and imposing liabilities must be deemed to apply to representatives also unless the rights andliabilities are. personal. The question then is whether, under1. : AIR1965Ker39 the terms of Section II-A the right is personal to the grantor. We think it is, what Sub-section (2) of theSection says is that the person who granted the melpattom shall, on application, be entitled to terminate themelpattom and we find it difficult to read into the words, 'the person who granted the melpattom' the words, 'or his heirs, legal representatives or assigns'. It is fallacious to argue that because the grantor of a melpattom is, or can be regarded as, a debtor and according to Section 2(fff) of the Act the word 'debtor' must be read as including his heirs, legal representatives and assigns, the heirs, legal representatives of a person who has granted a melpattom must be entitled to make anapplication under Section II-A (2). Section II-A does not use the word 'debtor'; all that Section 2(fff) requires is that the word ''debtor' wherever it appears shall, unless the context otherwise requires, be read as including the heirs, legal representatives and assigns of the debtor; and even if the grantor of a melpattom be a debtor, section 2(fff) is hardly relevant for the purpose of determining whether the words, 'the person who granted themelpattom' can be read as including the heirs, legal representatives and assigns of such a person. On a plain reading they cannot. And the very fact that the Act defines 'melpattomdar,' ''mortgagee,' 'debtor' and 'creditor' as including the heirs, legal representatives and assigns of the melpattomdar, mortgagee, debtor and creditor respectively, without enacting a similar definition in respect of a person who granted the melpattom is an indication that the heirs, legal representatives and assigns of the grantor are not included within that expression. And, if we were to hold that personsclaiming under the grantor would be entitled to the benefit of Section II-A (2) it would mean that they would be entitled to the benefit even though they are notagriculturists provided the melpattom was granted by an agriculturist. For, the proviso to Section 2(fff) which requires the heirs, legal representatives and assigns of a debtor to be agriculturists if they are to be regarded as debtors would not be available'.
Therefore, the said Kerala decision makes it absolutely clear that the relief meant to be given by the Debt Relief Act is purely personal to the borrower and the benefit thereof cannot be claimed by his legal heirs or representatives, assigns or legatees. The said Kerala decision makes it clear that unless the legislature introduces an inclusive definition so as to include the legal representatives, heirs and assigns the Court cannot introduce that aspect into the definition because the heirs, legal representatives and assigns claiming through the borrower must be agriculturists and must be persons entitled to the benefit of the Act.
8. Sriyuth Ramachandra placed before me the decision in Hirachand Motichand -v.- Hansabai Ganpatrao, Hansabai, 25 Bom. L.R. 76 which reads :
'The plaintiff obtained a decree against one Sangunabai. It was an ordinary money decree, and, therefore, he could not seek to execute the decree against the immoveable property of the judgment-debtor who was held to be an agriculturist. But the plaintiff might have applied to the Court under paragraph 2 of Section 22 of the Dekkhan Agriculturists' Relief Act to direct the Collector to take possession, according to the terms of that paragraph, of any immoveable property of thejudgment-debtor to the possession of which he was entitled, and which in the opinion of the Collector was notrequired for her support and the support of themembers of her family dependent on her. The judgment-debtor having died, this Darkhast was filed against herdaughters as her heirs, and it is now contended that the Courthas jurisdiction to direct the Collector to take possession of the immoveable property which has come to thedaughters as heirs of the original judgement-debtor. Both Courts have dismissed the Darkhast, and we think they were right. If it had been intended that in the case of the death of a judgment-debtor who was an agriculturist, his property in the hands of his heirs could be taken possession of by the Collector under the directions of the Court, then that ought to have been specifically stated in the second para of Section 22. We cannot accede to the argument that we should read into the Section the words 'or his heirs' after the word ''judgment-debtor' with the various consequential alternations which would have to be made in thatparagraph. That would be so far as I can see, entirely contrary to all cannons of construction, and if theLegislature thinks that a creditor should have the remedy provided by Section 22, paragraph 2, not only against the judgment debtor, but also against his heirs, then it is for the Legislature to make the necessary amendments in the Act'.
9. Sri Krishnaswamy Rao for the Jdrs. argued that if the words, ''heirs, legal representatives and assigns' are held as not coming within the scope of the definition of the word 'debtor' given in the K.D.R. Act, the very object would be frustrated because the poor L.Rs and the heirs and assignees would be deprived of the benefit which the Act intended to confer on them. His argument, though it sounds rather well, cannot be accepted because it is for theLegislature to give benefit to some persons only and not to give benefit to the heirs, representatives or assignees of the original borrower. If the Legislature intended to confer the benefits of the Act on the heirs, assignees and legatees of the original borrower also, nothing could have deterred the Legislature from including these persons also in the definition of the word, 'debtor'. Therefore, the argument of Krishnaswamy Rao does not appeal to me in the least.
10. This Court in Ramegowda -v.- Sarojamma, 1980 (1) K.L.J. 545, has ruled that it is not open to the legal representatives of the original borrower to take shelter under the provisions of the K.D.R Act. Similar view was again expressed by this Court in CRP 3032 of 1981. In the case of LRs.the L. are not proceeded against in their personal capacity. The decree requires that the amount should be recovered by proceeding against the property of the deceased borrower, which has come into the hands of the L.Rs. As already stated above, the benefit conferred by the K.D.R. Act is purely personal to theborrower. He alone is entitled to claim the benefit of the K.D.R. Act. Therefore the borrower must be alive when the suit was filed or the execution was sued out. Even if the borrower is dead after the termination of the suit, still his L.Rs. would not be entitled to claim the benefit of the K.D.R. Act.
11. Learned Counsel Sri Krishnaswamy Rao for the Jdrs. urged that this is only a revision under Section 115 C.P.C. and this Court should not interfere with the order passed by the Court-below because the Court below had the jurisdiction to pass the order. Section 115(c) reads as :
'to have acted in the exercise of its jurisdiction illegally or with material irregularity.'
The lower Court illegally defined the word, 'debtor' in the Karnataka Debt Relief Act as including a person who was dead long before the institution of the suit. This is illegal and opposed to the provisions of the K.D.R. Act. Therefore, the lower Court has acted illegally in the exercise of itsjurisdiction. Therefore, this case calls for interference even under Section 115 C.P.C.
12. In the result, the order passed by the Court below is set aside. The revision is allowed. The lower Court is directedto proceed with the execution. At the risk of repetition I would make it clear that the decree-holder can proceed only against the share of deceased Vishweshwar Hegde in. the joint family property, which has come into the hands of the Jdrs.