S.C. Mohapatra, J.
1. Defendants are the petitioners against an order of the Subordinate Judge, Parlakhemundi in Money Suit No. 8 of 1979 refusing the prayer of the defendants to hold that the suit has abated under Section 3(l)(c) of the Orissa Debt Relief Act, 1980 (Orissa Act 5 of 1981), (hereinafter referred to as 'the Act').
2. Defendant No. 1 is the father and defendants Nos. 2 and 3 are his minor sons. The suit was instituted on 2-3-1979 claiming realisation of a sum of Rs. 1,772/-. The plaintiffs case, in short, is that on 9-5-1972, defendant No. 1 took a loan of Rs. 500/- for himself and on behalf of his minor sons and on 10-3-1973, defendant No. I took a loan of Rs. 800/- to meet his urgent requirements and for household expenses. In respect of both the loans, he executed a promissory note on 10-3-1973. Defendants have filed a joint written statement claiming, amongst others, that the entire amount has been paid.
3. While the suit was pending, the Act came into force on 13-3-1981. After the corning into force of the Act, an application was filed on behalf of the defendants on 6-11-1981, to order abatement of the suit in view of Section 3 of the Act. In the said petition, it was claimed that defendant No. 1 is a scheduled debtor and a small farmer. In another application, it was indicated to hear issue No. 4 regarding maintainability of the suit which is covered (by) the question of abatement also. By order dt. 6-11-1981, trial Court directed the issue to be heard as a preliminary issue. On 10-12-1981, both parties adduced evidence and filed documents in support of their respective claims. By the impugned order dated 18-1-1982, trial Court held that defendant No. 1 is the owner of more than one standard acre of land and the suit would not abate under Section 3.
4. Mr. C. A. Rao, the learned counsel for the petitioners submitted that the finding arrived at by the learned Subordinate Judge is not supportable from the materials on record and as such, the order is vitiated on account of exercise of jurisdiction with material irregularity. Mr. P. V. Ramdas, the learned counsel for the opposite party submitted that the finding is one of fact not to be interfered with in Civil Revision.
5. Since there is no precedent, I went into the merit of the case to come to one independent conclusion and to find out the scope of Section 3 of the Act.
6. Section 3(1) provides that every debt incurred by a scheduled debtor before the commencement of this Act including the amount of interest, if, any, payable on such debt shall be deemed to have been wholly discharged. In Clause (c) of Section 3(1), it is provided that all suits and proceedings (including appeals, revisions, proceedings in execution and attachment), pending on the date of commencement of this Act for the recovery of any such debt or interest due thereon against a scheduled debtor shall abate. One of the exceptions to the abatement was that in case of a suit against a scheduled debtor and any other person it shall not abate in so far as the claim against such other person is concerned. It is profitable to extract the relevant portion of Section 3 of the Act, It reads as follows :
'3. Discharge of debt by scheduled debtors and consequences of such discharge --
(1) Notwithstanding anything contained in any other law for the time being in force or in any contract or other instrument having force of law by virtue of any such law, and save as otherwise expressly provided by Section 5, every debt incurred by a scheduled debtor before the commencement of this Act including the amount of interest, if any, payable on such debt shall be deemed to have been wholly discharged, and --
(a) &(b) .....
(c) All suits and proceedings (including appeals, revisions, proceedings in execution and attachment), pending on the date of commencement of this Act for the recovery of any such debt or interest due thereon against a scheduled debtor shall abate :
Provided that where a suit or proceeding is pending jointly against a scheduled debtor and any other person it shall not abate in so far as the claim against such other person is concerned:.....'
A scheduled debtor has been defined under Section 2(h) which reads as follows : --
'Scheduled debtor' means a person who is a small farmer or a rural artisan or an agricultural labourer and who is ordinarily resident in the State of Orissa;
Petitioners' case is that defendant No. 1 is a small farmer. The phrase 'small farmer' has been defined under Section 2(i). It reads as follows : -- 'Small Farmer' means a farmer who owns land measuring not more than one standard acre and whose principal source of income is agriculture or any allied occupation; Standard acre has been defined under Section 2(j) to have the same meaning as defined in the Orissa Land Reforms Act, 1960. (Orissa Act 16 of 1960).
7. The Act is a benevolent legislation to give relief to the scheduled debtors. In order to give benefit to the persons, the Court has to carefully scrutinise if the requirements are satisfied.
8. The trial Court has come to the conclusion that defendant No. 1 was the owner in possession of one acre forty three cents of Class-1 land giving two or more crops and about two acres of Class-III lands. It has relied upon the evidence of the witnesses for the plaintiff and the four documents marked Exts. 1 to 4. Ext. 1 is a sale deed executed by one Suku Dora in favour of the father of defendant No. 1 and another. Ext. 2 is a sale-deed executed by Soura Suku Dora and others in favour of the father of defendant No. 1. Exts. 3 and 4 are the certified copies of Khatians. The lands in Ext. 3 have been recorded in the name of the father of defendant No. 1 and his brother Padana. Since the father of defendant No. 1 was the owner of the lands covered under Exts. 1,2,3 and 4, they become ancestral land in the hand of defendant No. 1. The extent of ownership of such ancestral lands depends upon the personal law to which the parties belong. If they are 'Hindus', the sons defendants Nos. 2 and 3 have also interest in those lands. Accordingly, it cannot be said that defendant No. 1 is the owner of the entire lands. Trial court has not kept in view this aspect of the matter.
9. It is to be examined whether defendants Nos. 2 and 3 are small farmers. In case, they are not small farmers, the suit shall not abate in so far as the claim against them. This aspect has also not been examined by the trial court. The order is thus outcome of non-consideration of the legal position which is accordingly liable to be set aside.
10. Apprehension of Mr. C. A. Rao., the learned counsel for the petitioners is that the order having been set aside on legal question, the finding of fact arrived at by the trial court will influence it to render its decision. It may make it clear that the trial Court shall make an enquiry relating to the abatement of the suit under Section 3(l)(c) of the Act afresh giving opportunity to both the plaintiff and the defendants to adduce further evidence in the matter and to further examine the witnesses already examined. It shall decide the question without being influenced by the previous order. An endeavour shall be made by the trial court to complete the enquiry by the end of Mar. 1985. To facilitate the fixing of a date of enquiry, both the parties shall appear before the trial court on the 4th Feb. 1985, when the trial Court will fix the date of enquiry.
11. In the result, the Civil Revision is allowed. There shall be no order as to costs.