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K. Raja Reddy Vs. Pothuka Gangi Reddy - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtAndhra Pradesh High Court
Decided On
Case NumberC.R.P. No. 46 of 1982
Judge
Reported inAIR1982AP328
ActsCode of Civil Procedure (CPC), 1908 - Sections 11; Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 - Sections 4
AppellantK. Raja Reddy
RespondentPothuka Gangi Reddy
Advocates:O. Adinarayana Reddi, Adv.
Excerpt:
.....indebtedness (relief) act, 1977 - in execution proceedings judgment debtor pleaded that he was small farmer and debt owed by him stood fully discharged - therefore decree passed against him not to be executed - execution court rejected plea on ground that petitioner's share in his joint family property was more than five acres therefore petitioner's claim of small farmer was not correct - high court observed that suit was decreed subsequent to coming into force of act and debtor had chance to raise such plea in original suit - it shall not be open for small farmer to raise that plea in execution. - - 2. additionally, however, i think that this revision petition has to fail on the ground that the present plea which the petitioner has taken in the execution petition that he was a..........the petitioner judgment debtor had filed e. a. 107/80 in e. p. 95/77 raising a plea that he was a small farmer and under act 7 of 1977 the debt owed by him stood fully discharged and that therefore, the decree passed in o. s. 458/77 against him should not be executed. this plea of the petitioner was rejected by the execution court on the ground that the petitioner's share in his joint family property was more than five acres and that therefore, the petitioner's claim that he was a small farmer was not correct. the execution court mainly relied upon the evidence of the petitioner's father who was p. w. 2. p. w. 2 deposed that he was possessing 12 acres of ancestral property and 19 acres of additional properly which was purchased by him. but p. w. 2 deposed that the lands which he had.....
Judgment:
ORDER

1. The petitioner was sued in O .S. 458/77 on the file of the District Munsif's Court, Kadiri, Anantapur District, for recovery of a sum of Rs. 8,000/- and odd. That suit was decreed. Now, the petitioner judgment debtor had filed E. A. 107/80 in E. P. 95/77 raising a plea that he was a small farmer and under Act 7 of 1977 the debt owed by him stood fully discharged and that therefore, the decree passed in O. S. 458/77 against him should not be executed. This plea of the petitioner was rejected by the execution court on the ground that the petitioner's share in his joint family property was more than five acres and that therefore, the petitioner's claim that he was a small farmer was not correct. The execution court mainly relied upon the evidence of the petitioner's father who was P. W. 2. P. W. 2 deposed that he was possessing 12 acres of ancestral property and 19 acres of additional properly which was purchased by him. But P. W. 2 deposed that the lands which he had purchased were his self-acquired properly and the debtor had no share in it. But the execution court rejected this part of the evidence of P. W. 2 on the ground that as there was sufficient nucleus of 12 acres of land to purchase the additional extent of land, the property purchased belonged to the joint Hindu family of the petitioner and his father. The execution court held that the petitioner's share in the joint family comes to Ac. 15-50 cents of dry land and even if it is notionally divided among himself and his two sons the judgment-debtor would get more than five acres of land to his share and that therefore, the petitioner's claim that he was a small farmer, cannot be accepted. Nothing is said in this revision petition to show that the above finding of fact was made by the execution court without jurisdiction or was hit by any element of illegality. Those findings alone are sufficient to justify a dismissal of this revision petition.

2. Additionally, however, I think that this revision petition has to fail on the ground that the present plea which the petitioner has taken in the execution petition that he was a small farmer is not available for him for being raised for the first time in execution of a decree passed by a competent court. The suit was filed some time in the year 1977. Admittedly before it was decreed the Andhra Pradesh. Agricultural Indebtedness (Relief) Act, 1977 (hereinafter referred to as 'the Act') had come into force. It was clearly open for the defendant-debtor to content in the suit that he was a small farmer and that therefore, he was entitled for the benefit of S. 4 of that Act S. 4(1) of the Act declares that 'every debt including interest, if any, owing to any creditor by any agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged.' Section 4(2) (a) says, that 'no civil court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of the debt, including interest, if any, which is deemed to be discharged under sub-sec,(1). Section 4 (2) (b) declares, that 'all suits and other proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of this Act against any debtor for the recovery of any such debt, including interest, if any, shall abate'. These are not self-operating provisions. They are dependent for their operation on the existence of certain facts. Under the aformentioned provisions of the Act the defendant-debtor could have raised a plea that he was a small farmer and the debt owed by him to the plaintiff was statutorily deemed to have been wholly discharged and that therefore, no civil court could entertain any suit or other proceeding for the recovery of that amount of debt. But he did not raise that plea in the suit. The question is, where the judgment-debtor who did not raise such a plea in the suit could raise that plea in execution. Such a plea, if permitted to be raised in execution, would amount to a negation of the suit and the decree passed. It should be noted that the provisions of the Small Farmer Act are in no way different or special from several other Acts and Laws conferring reliefs and rights on the agricultural debtor. But in all the cases the relief can be granted by the courts only after their finding and certain facts exist. In this case, this relief conferred by the Small Farmer Act is available only to a certain class of debtors called 'small farmers'. The answer to the question whether the debtor is a small farmer or not governs the issue whether the Act applies to the debtor in this case. But the argument of Sri Adinarayana Reddy is that there is no such finding recorded by the court in the suit and therefore nothing on record prevents him from raising that question now. This argument of the learned counsel ignores the fact that procedure is as much a part of our law as substantive law is and that rights granted by substantive law have to be worked out in accordance with procedural law. The question whether the debtor is a small farmer can only be decided by a civil court governed by the Civil P.C. The non obstinate language used by Sec. 4 of the Small Farmer's Act has nothing to do with procedural rights which guarantee 'regularity of trial and declaration of parties' rights under substantive law. Now, normally the decision in the suit where a debtor did not raise the plea that he was a small farmer would operated as a res judicata and would prevent a debtor from raising the same question which he might and ought to have raised in the suit in execution. This would be the effect of Sec. 11 read with its Explanation IV of Civil P.C. There is no doubt that Sec 11 of Civil P.C. would apply to the trial of a suit filed for the recovery of any debt, including a debt due from a person claiming to be a small farmer. Under Explanation IV to Sec 11, any matter which ought and might have been made a ground of defence or attack would be deemed to have been a matter constructively and substantially in issue in such a suit and therefore, the decision of the civil court in the suit would operate as res judicata not only on the express pleas taken by the defendant and decided by the civil court, but also on such other matters and pleas which ought and might have been made a ground of defence by the defendant Accordingly, the failure of the defendant to take this plea that he was a small farmer in the suit would not permit the debtor now to raise that plea. Law would deem that such a plea was raised and rejected. The decree of the civil court operates as res judicata and prevents the debtor from raising the same plea in execution. But it is argued by Mr. Adinarayana Reddy that inasmuch as Act 7 of 1977 directs that the debt of a small farmer should be regarded as wholly discharged, it is open for his client to take this plea even in execution. I think there is some confusion in this submission. As noted above, the Act and more particularly, Sec 4 would depend for its applicability on a finding by a competent court that the debt was owed by a small farmer. The duty of the civil court not to entertain any proceeding for the recovery of a debt under the above Act arises only on such a finding. Without such a finding by the civil court that the debtor was a small farmer there would be no ground for the Act to operate upon. From this it follows that any finding once given in the suit or deemed by law to have been given in the suit by reason of the provisions of Civil P.C. cannot be ignored at the stage of execution of the decree. Any other construction would make the litigation more endless than it is to-day. The adjudication would then be even less fruitful. If this argument of the debtor is accepted, nothing would prevent a judgment-debtor from suing a decree-holder for return of money collected from him by way of execution. He can even ask for return of a decretal amount collected from him under a decree passed and executed. Law in abstract looks wondrous. But in action with its perils of appeals and uncertainties of revisions, restorations, reviews and special leaves, it can ruin most of those who are parties to it. Litigation can only be accepted as a necessary evil and there must be a finality to such an evil. No one should therefore be vexed with it twice over either in its criminal or civil jurisdictions.

3. The defendant had a chance to plead and prove that he was a small farmer in the suit. The suit in this case was decreed after the Act had come into force. If the suit had been decreed before the Act had come into force clearly constructive res judicata would not have applied. It would have been then possible for the debtor to raise in execution the plea of a small farmer u/s. 4 (2) (a) of the Act, because constructive res judicata would not have operated against him. But, where the suit was decreed subsequent to the coming into force of the Act and the debtor had a chance, but never raised such a plea, it shall not be open for the small former to raise that plea in execution. Normally, no collateral attacks should be permitted on the decree which had been passed after hearing both the parties. Where the statute expressly says otherwise, subject to constitutional mandate, it would be otherwise. The meaning of the Act in this connection should be gathered from its provisions as well as those of the Civil P.C. and more particularly S. 11. In the case of a decree passed before the Act came into force, Explanation IV to Sec. 11 of Civil P.C. would not debar the debtor from raising a plea that he was a small farmer in execution because on the day when the suit was decreed such a pleas was not available to the debtor. The doctrine of 'ought-and-might' cannot, therefore, be applied to. As this is a suit decreed after the commencement of the Act. I hold that the doctrine of constructive res judicata would fully apply to the petitioner'.

4. Ramachandra Rao J., held in V. Ramanaiah v. P. Akkaiah. (1981 (2)APLJ (Short notes) 12) that Sec. 11 Explanation IV of Civil P.C. would govern the Act. In that case (C. R. P. No. 2752/81) the defendant did set up a plea that he was entitled to the benefits of Act 7 of 1977 but never proved that plea, because he remained ex parte. The suit was decreed ex parte. It was held by Ramachandrarao J., that the issue whether the debtor was a small farmer should be deemed to have been decided against the defendant-debtor. It was accordingly held that deemed finding precludes him from raising that plea once again at the time of execution. In my opinion, this judgment is clearly applicable to the facts of the case. I am not in agreement with Mr. Adinarayana Reddi's ground of distinction. The fact that the defendant did not raise any such plea in the present suit cannot put him on any higher pedestal compared to a defendant who remained ex parte in the suit. In fact it would be illogical to hold so.

5. I must say that the courts must firmly reject these indiscriminate pleas of small farmers. Good laws should not be allowed to be put to bad uses.

6. In the circumstances, I do not see any error in the judgment of the court below and I accordingly dismiss the Civil Revision Petition.

7. Petition dismissed.


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