(1) The short question that falls for determination in this revision is whether the plea of being an agriculturist set up by the petitioner herein is barred by the principle of constructive res judicata. It arises in the following circumstances.
(2) A suit was instituted against the petitioner here in the year 1958 (O. S. No. 125 of 1958) on the file of the District Munsif, Warangal. It was decreed on 4-4-1960 for a sum of Rs. 4,750/- in terms of a comprise memo filed by the parties. The first E. P. was filed in 1962 and was closed on 25-4-1962 recording part-satisfaction on payment of Rs. 600/- The second E. P. No. 91/63 was filed on 24-6-1963 for the balance amount and prayer was included for the arrest of the judgment - debtor. petitioner herein. A notice was issued to the judgment - debtor who appeared on 24-71963 and filed an application for granting time to file a counter.
In the counter he alleged that apart from the lands which were the subject matter of litigation he had no other property and as such the petition for arrest be dismissed. Thereafter, the judgment - debtor took four months time to pay the balance of the amount, but after a lapse of the said period instead of paying the amount he put forth a plea that he was an agriculturist and debtor within the meaning of section 2(6) of the Hyderabad Agricultural Debtors Relief Act (herein after called the act) and therefore, the E. P. be converted into an enquiry for scaling down the debt. It also prayed for the transfer of proceedings to the court competent to hear such cases. The respondent pleaded that the petitioner was precluded from raising the plea and that he was not a debtor within the meaning of the word used in the Act. The learned District Munsif relying on a decision in Shankar Ramkrishna v. Daga Tanaji Mali, AIR 1949 Bom 79 held that the plea set up by the petitioner was barred by constructive res judicata is directed against the said order.
(3) The learned counsel for the petitioner concedes that this plea of being an agriculturists and a debtor within the meaning of the act has not been raised at the earlier stages. In the first E. P. which was closed on 25-4-1962 there was no reference to the judgment - debtor being an agriculturists. Even in the second E. P. it was only after the time prayed for payment was granted that the plea was set up. but his contention is that it being a right ground by statutory provision it could be raised at any stage. Further , his argument proceeds that the matter not being within the scope of S. 47 of the code of civil procedure the principle of constructive res judicata could not be extended to apply to such proceedings.
(4) Reliance has been placed for this purpose on the case of Kanakammal v. Md Kathiji Beevi, : AIR1953Mad188 wherein with reference to S. 19 of the Madras Agriculturists Relief Act it has been laid down that :
'An application under S. 19 of the Madras Agriculturists' Relief Act is not one /v comes under S. 47 Civil P. C. and therefore the principle of res judicata in execution cannot apply, where a judgment - debtor fails to raise the question of scaling down the debts in an earlier application for execution so as to disentitle him from raising the question at the later stage.'
(5) In that case in execution of the compromise decree certain properties were sold in the first E. P. filed by the decree-holder. In the 2nd E. P. the objection was raised that the application was barred by res judicata, but it was overlooked. At the stage of appeal an application under S. 19 was filed for scaling down the decree and was allowed by the lower courts. When the matter came up in appeal an objection was raised that the application under S. 19 was barred by the principle of res judicata. It was held that the said application not being one which came within the purview of section 47 C. P. C. the principle of res judicata was not attracted.
(6) The learned counsel for the respondents seeks to distinguish the said ruling on the ground that section 19 of the Madras Agriculturists Relief Act is not in pari materia with the provisions of the Hyderabad Agricultural Debtors Relief Act (Act No. XVI) 1956 . Section 19 of the Madras Act reads as under :
'(1) Where before the commencement of this Act, a court has passed a decree for the payment of a debt, it shall on the application of any judgment - debtor who is an agriculturists or in respect of a Hindu joint family debt, on the application of any member of the family whether or not he is the judgment - debtor or on the application of the decree-holder apply the provisions of this Act. to such decree and shall, notwithstanding anything contained in the Code of Civil Procedure, 1908 amend the decree according or enter satisfaction as the case may be.'
Whereas the corresponding Hyderabad Act in the following words :
19'(1) All suits, appeals, applications for execution and proceedings in respect of any debt pending in any civil or revenue court shall, if they involve the questions whether the person form whom such debt is due is a debtor and whether the total amount of debts due from him exceeds Rs. 15,000/- be transferred to the Court.'
(7) It is contended that under section 19 of the Madras Act it has been laid down that notwithstanding anything contained in the Code of civil Procedure the Court is empowered to amend the decree etc., whereas in the Hyderabad Act there is no such provision. It is urged therefore that the said ruling is inapplicable. I am not inclined to accept this contention. The question before the Bench was whether an application under S. 19 came within the purview of /s. 47 of the Code of civil Procedure and on a consideration of the principle laid down in Adaikappa Chettiar v. Chandrasekhara Thevar, ILR (1948) Mad 505 : AIR 1948 PC 12) it was held that an application under S. 19 was not one relating to the execution of the decree. So that, notwithstanding certain omissions the principle of res judicata cannot be made applicable to and under section 19 of the Hyderabad Act. It is pointed out that an application under s. 19 is also a matter in the execution of a decree taking the word 'execution' in its widest connotation. No doubt it appears to be so, but having regard to the use of the word execution in section 47 of the Code of Civil Procedure it cannot be strictly constructed to be a matter relating to the executability of a decree. The plea of limitation is a matter directly relating to the execution of a decree. So that, if it is pleaded that the decree is barred by limitation the question can be gone into under s. 47 C. P. c. but when it is urged that on account of certain statutory provisions the judgment - debtor is entitled to certain relief the matter does not directly relate to the execution of a decree though ultimately it may have a bearing on its executability. It is on this basis that the decision in : AIR1953Mad188 Seems to have been given. The dividing line appears to be thin, but it is there.
(8) The lower Court has relied on the case of AIR 1949 Bom 79 wherein the judgment debtor was denied the opportunity of putting forward the status of an agriculturist at a later stage on the ground that he did not avail of the said opportunity at the earlier stage of the execution proceedings, The case proceeds on the footing that the principle of constructive res judicata extends only to matters in the same execution proceedings. Any objection taken in the subsequent execution proceedings would be not barred. In para 3 of the judgment while distinguishing a Bombay case the learned Judge observed as under :
'When you have several darkhasts presented and there are several execution proceedings, it may be that a judgment - debtor may not contest the earlier ones, but that would not deprive him of the right to avail himself of the benefit to him under the Dekkhan Agriculturists relief act in a subsequent execution proceedings But when we are dealing with the same execution proceedings after a judgment debtor who has had the opportunity of putting forward the contention that he was an agriculturist at an earlier stage of the proceedings, fails to do so and stands by, it is not open to him at a later stage to raise that contention and practically compel the Court to scrap the proceedings already taken and nullify orders already passed.'
With great respect to the learned Judge I am not inclined to accept this view. it has been held that the principle of constructive res judicata not only applies to subsequent proceedings but also to various stages in the same proceedings. further , it has not considered whether an application under S. 19 came within the purview of Section 47 C. P. C. A decision based on the said ruling therefore cannot be sustained.
(9) The case of Narayana Chettiar v. Annamalai, : AIR1959SC275 deals with a different situation. The main question that fell for consideration that fell for consideration before the Supreme Court was whether the operation of section 19(2) of the Madras Agriculturists Relief Act (IV of 1938) was controlled by S. 16 of the Madras Agriculturists Relief (Amendment) Act (23 of 1948). The High Court was of view that the scope the amendment Act, but the Supreme Court placed a different interpretation and held that the petition under S. 19(2) of the Act was not barred by res judicata. I think the case no bearing on the facts on the present case.
(10) The learned counsel for the petitioner relying on the analogous provisions of the Hyderabad agricultural Debtors relief act (XVI of 1956) has contended that once a claim has set up by the judgment - debtor that he was a debtor within the meaning of the Act, the executing Court was bound to refer the matter to a competent court without going into the question whether the plea was barred by limitation or not. That matter has to be decided by the Court to which the proceedings are transferred. I am not inclined to accept this contention. No doubt the question whether the petitioner was a debtor within the meaning of the Act or not has to be finally determined by the Court competent to deal with such matters, but it is not correct to say that the moment a petition is filed by a party claiming to be debtor, the court in which the petition is filed is precluded from any further enquiry. In order to make a case for transfer the petitioner has necessarily to establish a prima facie case for doing so and if there is any bar as to the executability of the decree, the transferring court is not precluded from going into the question. I think the lower court was competent to dispose of the matter and any objection as to its competency to do so is untenable. However, as in my opinion, the petition under S. 19 is not barred by the principle of res judicata, the order of the lower court has to be set aside. the revision petition is allowed with costs, directing the lower court to transfer the proceedings after necessary enquiry to the court competent to deal with the cases under the Act.
(11) Petition allowed.