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Ganesh Mal Vs. Magan Raj - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Execution First Appeal No. 2 of 1974
Judge
Reported in1975(8)WLN146
AppellantGanesh Mal
RespondentMagan Raj
DispositionAppeal dismissed
Cases ReferredKeshav Gansham v. Waman Bangali
Excerpt:
.....on record squarely falls on the debtor for whose benefit further proceedings shall be taken by the debt relief court.;(c) rajasathan relief of agriculture is indebtedness act, 1957 - section 6, 7 & 8 court to proceed under section 8 only after all creditor are brought on record--notice be served on ail creditors either personality or through submitted service.;if all the creditors have not been brought on the record by the debtor after the admission of the application under section 8 of the act, then in my opinion the court cannot proceed fur her to declare the debt of the absentee creditor as discharged under the provisions of section 8 of the act. our act makes it mandatory that it will be incumbent for every debtor after the application under section 6 is admitted to make all the..........the contention of learned counsel for the appellant it that the appellant was declared by the debt relief court, jalore in the proceedings initiated by himmatmal as an agriculturist. therefore, his house, which was attached in the execution proceedings should have been declared as exempted from attachment under section 60 of the code of civil procedure. the learned executing court rejected this objection on the ground that such an objection was taken by the judgment-debtor even before but that objection was dismissed by the executing court on 21st october 1967, declaring that the judgment-debtor was not an agriculturist as he was running a ginning factory, and that he was a man of means and was not dependent on agriculture for his livelihood. in view of the previous order passed.....
Judgment:

V.P. Tyagi, J.

1. This appeal of judgment-debtor Ganesh Lal is directed against the order of the learned Addl. District Judge, Sirohi, dated January 19, 1974, where by two applications of the judgment-debtor, one filed on 4th December, 1973, are the other on 18th December, 1973, were dismissed by the executing Court.

2. The facts giving rise to this appeal may, in nutshell, be summarized as follows Decree-holder respondent Magan Raj obtained a decree from the Court of Civil judge on 21st October 1967. In the execution proceedings, the judgment debtor took a pie a that he was an agriculturist; but that plea was rejected by the executing court. It appears that the house belonging to the judgment debtor was got attached by Megan Raj, decree-holder, and in that connector an application was filed on 18tn December, 1973 by the judgment-debtor that the house attached was exempted from attachment under the provisions of Section 60 of the Code of Civil Procedure because it was a residential house of an agriculturist. Another objection raised by the judgment debtor vide his application dated 4th December, 1973 was that no claim was filed by Maganraj to get his debt determined in a proceeding taken by Himmatmal, another creditor of Ganeshmal, under Section 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (hereinafter to be referred to as the Act) and, therefore, the debt of the decree holder against the judgment debtor should be taken to have been discharged under Section 8 of the Act. Both these objections were rejected by the executing Court by the impugned order under appeal.

3. The contention of learned Counsel for the appellant it that the appellant was declared by the Debt Relief Court, Jalore in the proceedings initiated by Himmatmal as an agriculturist. Therefore, his house, which was attached in the execution proceedings should have been declared as exempted from attachment under Section 60 of the Code of Civil Procedure. The learned executing Court rejected this objection on the ground that such an objection was taken by the judgment-debtor even before but that objection was dismissed by the executing Court on 21st October 1967, declaring that the judgment-debtor was not an agriculturist as he was running a ginning factory, and that he was a man of means and was not dependent on agriculture for his livelihood. In view of the previous order passed between the parties on 21st October 1967, the executing Court was right in rejecting the application of the judgment-debtor filed by him on 18th December, 1973 on the application of doctrine of res judicata There is no reasonable ground available to the appellant to challenge the order of the executing Court dismissing his application dated 18-12-73.

4. The second question raised by the judgment-debater is more important, and requires a close scrutiny of the provisions of Section 8 of the Act. It is admitted between the parties that one Himmatmal, who had advanced loan to the judgment-debater-appellant, filed an application under Section 6 of the Act, in the Debt Relief Court, Jalore, but the debt of Himmatmal could not be determined as it was satisfied before that final order was passed by the Debt Relief Court While disposing of the application of Himmatmal the Debt Relief Court made an observation that Ganesh Mal was an agriculturist. It is on the basis of these observations of the Jalbore Court that an application was moved by the judgment debtor on 4-12-73 seeking a declaration that the decrial debt of the respondent who did not put up any claim before that Debt Relief Court be decided to have been discharged. It may, however be noted here that respondent Maganraj was not made a party to the proceedings in the Debt Relief Court though he was called to appear as a witness on behalf of Himmatmal to prove the execution of the bond the basis of Himmatmal's claim.

5. The contention of the learned Counsel for the appellant is that since Magan Raj, respondent had appeared as a witness in the proceedings under the Act before the Debt Relief Court, Jalore, he knew that the proceedings under Section 6 of the Act were initiated against Ganeshmal, who was his debtor and it was, therefore, incumbent on him to have filed his claim. Since Magan Raj, respondent, did not file any claim before the Debt Relief Court, it is urged that his debt must be deemed to have been discharged under the provisions of Section 8 of the Act.

6. The plea of the judgment-debtor takes the Court to the scheme of the Act, Section 6 of the Act lays down the provision for initiating proceedings in a Debt Relief Court for the determination of the debt of an agriculturist debtor. Such an application can also be made by a creditor. When an application is moved under Section 6 of the Act, it becomes the duty of the Debt Relief Court to admit it, if the debtor or the creditor, whoever may be the application succeeds to establish that the debtor is an agriculturist. After an application under Section 6 of the Act is admitted by the Debt Relief Court, then the provisions of Sections 7 and 8 are attracted. Section 7 provides:

Section 7 Upon the admission of an application under Section 6 (or Section 6A) all creditors of the applicant, including those to whom any liability referred to in Section 4 is due, shall be joined a parties to the proceedings and the Debt Relief Court shall pass an order fixing a date of bearing, shall cause notice of such date together with a copy of the application, to be served en all such creditors of the applicant arid that cause copies of such notice and application to be affixed to the Court house.

7. After complying with the requirements of Section 7, Section 8 would come into operation, which reads as fellows:

Section 8(1) On or before the date fixed for the hearing of the creditors under Section 7 which shall not be earlier than two months from the date of service of notice or of the issue of proclamation under Order V Rule 1-20 of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908), every creditor shall submit a statement of his claim signed and verified in the manner prescribed by order VI Rule 15, of the First Schedule to the said Code Such statement shall be submitted in pension by an agent, by a pleader or by registered post and every claim not so submitted shall be deemed for all purposes and all occasions to have been discharged as against such debtor or debtors.

8. The scheme of these two Sections 7 and 8 of the Act clearly shows that after the application made by the debtor or the creditor as the case may be under Section 6 of the Act is admitted by the Debt Relief Court, then all the creditors shall be impleaded as parties to the proceeding, and it is only after bringing all the creditors on the record, that the Debt Relief Court would proceed further to pass an order fixing a date of hearing, and also it shall cause notice of such date together with a copy of the application, to be served on all such creditors and also cause the copies of such notice and the application to be affixed on the notice board of the Court.

9. The provisions of this section are mandatory in character, end it contains a command of the Legislature that after admission of the application in accordance with the provisions of Section 6 of the Act, it would be the duty of the applicant to bring all the creditors on the record.

10. Mr. Rastogi argues that the application under Section 6 can also be filed by the creditor who would not be knowing the names and the address of all the creditors of the agriculturist debtor, and therefore, it would not be possible for an applicant creditor to impleaded all other creditors as parties to the proceedings and, therefore, it cannot be read in the scheme of Section 7 that all other creditors are to be brought on record by the applicant. According to Mr. Rastogi when the notice of the proceedings is exhibited publicly on the court notice board then it becomes the duty of the creditors not known to the applicant to apply to the Court to be joined as parties to the proceedings and if they fail to do so then by virtue of Section 8 their debt shall be deemed to be discharged.

11. I regret I cannot accept the interpretation put to Sections 7 and 8 of the Act by Mr. Rastogi as this interpretation is likely to prejudice the creditors who, for various reason may not know that any proceedings under the Act is pending for the determination of the debt of a particular debtor. Is it true that an application under Section 6 can be filed both by a creditor as well as the debtors, but after such an application is admitted under Section of the Act by the Debt Relief Court then it become the requirement of the law that ad the creditors of the debtor must be brought on the record, and it is only there after that the notice is issued to such creditor, & than the Debt Relief Court could proceed further to determine the debt. If the language of Sections 7 and 8 is read with reference to the provisions of Section 6, then, in my opinion, the responsibility to bring the creditors on record squarely falls on the debtor for whose benefit further proceedings shall be taken by the Debt Relief Court because the provisions of Section 7 clearly states that 'Upon the admission of an application under Section 6 all creditors of the applicant, including those to whom any liability referred to in Section 4 is due, shall be joined as parties to the proceedings. The word 'applicant' used in this section would mean nothing but toe debtor who would ultimately be benefited by the proceedings taken under the Act even though the application under Section 6 might have been moved by or on behalf of a creditor In this view of the matter, if all the creditors have nit been brought on the record by the debtor after the admission of the application under Section 6 of the Act, then in my opinion the Court cannot proceed further to declare the debt or the absentee creditor as discharged under the provisions of Section 8 of the Act.

12. Section 8 requires that on or before the date fixed for the hearing of the creditor a under Section 7, it is necessary for other creditors to submit statements of their claims signed and duly verified in the manner prescribed by the Code of Civil Procedure. This is possible far the creditor to do so only when he has been duly served under the provisions of Section 7 of the Act. The requirement of Section 8 cannot apply to such creditors, who have not been joined as party to the proceedings. The view taken by me that every creditor should be brought on the record before the consequences of Section 8 are attracted to the debts of the creditors not impleaded as a party finds support from the provision? of Section 8 relating to the method of service of notice on the creditors who are not served under Section 7 of the Act. The law envisages the mode of service on the creditors not served under Section 7 of the Act that service of the notice can be effected by issuing a proclamation under Order V Rule 20 of the First Schedule to the Code of Civil Procedure 1908. This mode of service is possible only when the name of the creditor has been brought on the record and he is known to the Court for issuing publication under Rule 20 of Order V of CPC. This provision of substituted service contained in Section 8 positively dictates that consequences of Section 8 can be attracted to the debts of such creditors who have been brought on the record under Section 7 and who have been served in accordance with the provisions of Section 7 and 8 of the Act.

13. It is contended by Mr. Rastogi that general notice by affixing the notice on the notice board of the Court would suffice to attract the provisions of Section 8 to wipe out the debt of a creditor who does not choose to file the statement of his debt even after the general notice was affixed on the notice board of the Court. In support of this proposition of law, reliance has been placed by him on a Bombay authority in the case of Keshav Gansham v. Waman Bangali : AIR1953Bom340 , wherein Ganga chief Justice, has laid down after considering Section 14 & 15 of the Bombay Agricultural Debtors Relief Act that dues of all the creditor whether brought on record or not shall be discharged if the claim has not been filed by the creditors in the proceeding taken under the Bombay Agricultural Debtors Relief Act, (8 of 1974). I have carefully perused the authority of the Bombay High Court and after having compared the provisions of Sections 7 and 8 of the Act which that of Section 14 and 15 of the Bombay Act, I can say that the scheme of that Act is not analogous to the scheme of the Act. N the Bombay At Section 14 did not case a duty on the debtor to bring on record all the creditors & there to see that each one of them is served in accordance with the provisions of law. Section 15 of that Act, no doubt, requires that if the debt of a creditors is adjudicated under the provisions of the Act by the Debt Relief Court, the creditors shall be bound by such determination, and the claim of such creditors who have not filed it before the Debt Relief Court then and then alone the claim of such creditors shall stand discharged. In this view of the provisions of law, I feel the ratio of the Bombay authority cannot be applied to the fact and circumstances of the present case, and therefore, the order passed by the executing Court in the present case cannot be declared to be suffering from any infirmity as urged by learned for Counsel the appellant.

14. While parting with this appeal, I may refer to the preliminary objections raised by the learned Counsel for the respondent On previous occasion when execution was taken by the decree-holder these objections which have been argued before this Court were never raised by the debtor in the executing court, and, therefore, he is new barred from rising these question on the principle of res judicata or constructive res judicata. The learned Counsel for the debtor has, however, filed an application that he may be allow wed to meet the preliminary objections and be permuted to lead evidence but in view of the interpretation of the scheme of Sections 7 and 8 of the Act, I need not go into the merits of these preliminary objections, as the appeal can be disposed of on merits in favour of the respondent.

15. The learned Counsel for the appellant wanted to raise a new objection before this Court that the interest of a tenant in agriculture holding cannot be sold in the execution of a decree because of Section 36 and 37 of the Rajasthan Tenancy Act. This question was never ra'sed by the judgment-debtor before the executing Court He cannot, therefore, be allowed to raise this fresh question before the appellate Court at such late stage.

16. In the result, the appeal fails, and it is hereby dismissed with costs.


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