C.B. Bhargava, J.
1. This is a revision application against the order of the Munsiff Magistrate Jaipur District date 6th May, 1968, passing an order for the abatement of the suit under Section 6(6)(i) of the Rajasthan Relief of Agriculturists Indebtedness Act, 1957, (Act No. 28 of 1957, hereinafter referred to as the Act).
2. A suit for recovery of Rs. 1615.54P. was instituted by the petitioners against the defendants on 20th September, 1967. Defendant No. 1 admitted the execution of the khata which was the basis of the suit while defendant No. 2 denied his liability. On 25th January, 1963, Shri Narain defendant at No. 1 applied for the stay of the proceedings for a period of three months to enable him to make an application under Section 6 to the Debt Relief Court. It was asserted in the application that the defendant was an agriculturist, and was cultivating 15 Bighas of land in village Vatka Tahsil Sanganer. Its Paicha Khatauni was also in his name and that his main source of livelihood was agriculture. No reply to this application was submitted on behalf of the plaintiff but he agreed to the stay of the proceeding and the court directed the stay of the proceedings till 26th April, 1968, to enable the defendant to make an application to the Debt Relief Court as prayed by him. There is no indication in the order about satisfaction of the court that the defendant was a debtor within the meaning of the Act. The defendants did not make any application to the Debt Relief Court, but the learned Munsiff-Magistrate ordered the abatement of the suit on 6th May, 1968, purporting to act under Section 6(6)(i) of the Act. It is against this order that the present revision application has been preferred. Section 6(4) and (6) run as follows:
(4) In cases covered by Clause (ii) of Sub-section (1) of Section 5, an application under Sub-section (1) or Sub-section (2) of this section, as the case may be shall be filed within the period fixed under the proviso to Sub-section (1) of Section 5.
(6) The suit or insolvency petition in which proceeding may have been stayed under Clause (ii) of Sub-section (1) of Section 5 shall abate:
(i) If no such application as is referred to in Sub-section (4) is filed, or
(ii) If such an application is admitted and notice of such admission has been received by the court concerned.
Section 5(1) of the Act is as follows:
(1) Whenever a suit or an insolvency petition against a debtor shall have been brought or made and pending in a competent court and such debtor or the person who brought or made such suit or petition applies to such court in this behalf, the court shall-
(i) abate such suit or petition if it is satisfied on affidavit or otherwise that an application to the Debt Relief Court under Section 6 Section 6-A has been made and admitted and is pending; or
(ii) stay proceedings in such suit or application if it is satisfied as aforesaid that the defendant or the opposite party, as the case may be, is a debtor within the meaning of the Act.
Provided that, in the case of an application for stay under Clause (ii) the court shall fix a period, not exceeding ninety days within which the application to the Debt Relief Court shall be made.
Now it is clear that an application under Section 5(1)(i) or (ii) can be made both by the debtor as well as the person who brought or made such suit or petition but the proceedings can be stayed on such application only upon the satisfaction of the court that the defendant or the opposite party is a debtor within the meaning of the Act. 'Debtor' has been defined under Section 2(cc) as an agriculturist or a member of a Scheduled Caste or a Scheduled Tribe who is liable for debts aggregating to one thousand rupees or more exclusive of claims in respect of liabilities mentioned in Section 4. 'Agriculturist' has been defined under Section 2(2) of the Act as:
a person who earns his livelihood wholly or mainly from
(i) agriculture; or
(ii) rent from agricultural land, in case he belongs to any of the categories of persons mentioned in Clauses (a) to (h) of Sub-section (1) of Section 46 of the Rajasthan Tenancy Act, 1955 (Rajasthan Act 3 of 1955) and includes a person who ordinarily engages in agricultural labour or who works as an agricultural artisan.
Section 6(4) then lays down that in cases covered by Section 5(1)(i) and (ii), application to the Debt Relief Court shall be filed within the period fixed under the proviso to Sub-section (1) of Section 5, and Sectio 6(6) lays down the consequence for failure io make such application, that is, the suit or the insolvency petition in such cases shall abate. The consequence mentioned in Section 6(6)(i) can only come into play when a proper order for the stay cf the proceedings under Section 6(1)(ii) has been passed. Again the court is only competent to pass an order for stay of proceedings when it is satisfied that the defendant or the opposit party is a debtor within the meaning of the Act It should appear from the record before on order of stay of proceedings is passed that the court had applied its mind to the question whether the defendant or the opposite party was a 'debtor' within the meaning of the Act. In the present case the record dees not show that the court had applied its mind to that question The order of stay will therefore be taken to have been passed without jurisdiction and as such no consequence as provided in Section 6(6)(i) could follow.
3. The court at the time of passing the order on 3rd April, 1968, does not seem to have applied its mind to the question whether Shrinarain was a 'debtor' within the meaning of the Act or not. Learned Counsel for the respondents pointed out that the defendant had clearly stated in has application that he was an 'agriculturist' which was his main source of livelihood and that fact was not controverted on behalf of the plaintiff It may be so. But a fair reading of the order would show that there was a request on behalf of the defendants for the stay of 'he proceedings' for a period of three months & to that the plaintiff had no objection. That is why the court stayed the proceedings until the 26th April, 1968. Besides this, mere non-opposition by the plaintiff to the stay of proceedings on the application of the defendant court not satisfy the condition laid down in Section 5(1)(ii) of the Act. The record must show that the court itself was satisfied that the defendant was a debtor within the meaning of the Act. The order for stay of the proceedings cannot be passed arbitrarily. There should be some material on the record to satisfy the court that the defendant was a debtor and it should also appear that the court had applied its mind to that material. Thus the court had no jurisdiction to pass the order which it did on 3rd April, 1968, without satisfying itself that the defendant was a debtor. If no proper order for the stay had been passed, then the court had no jurisdiction to make any order under Section 6(6)(i) of the Act. That order also would be held to have been passed without jurisdiction In this view of the matter, the order dated 6th May, 1968, deserves to be set aside.
4. I would also like to emphasize that the above provisions tend to create a very queer position that if the proctedings were stayed by the court court on the application of the defendant after having been satisfied that he is a debtor to move an application under Section 6 of the Act to the Debt Relief Court and he does not make such application within the time prescribed under the proviso to Section 5(1), it is the plaintiff who has to suffer the consequences, that is, the abatement of the suit, even though he might have opposed the defendant's application on the ground that he was adebtor. This was also pointed out by Bhandari C.J. in a Bench decision reported in Pyarelal v. Rani Raman Kumari 1970 R.L.W. 159 and it was observed:
If such an application is not made either by the debtor or by the creditor the consequences will be that the suit or the insolvency petition in which proceedings have been stayed shall abate, It is so provided in Sub-section (6) of Section 6 of the Act. This appears to be a bit harsh and unjust to the creditor because it may turn out to be a case in which the creditor had opposed the application of a debtor under Section 5(1) for stay of proceedings on the ground that the defendant or the opposite party as the case may be was not a debtor within the meaning of the Act and ytt while filing the application under Section 6(2) he is asked to take up the position that the defendant or the opposite party is a debtor.
It is the party who after obtaining time from the court fails to make an application to the Debt Relief Court that should bear the consequences of its own default and not the o'her party. If the defendant obtains an order of stay of the proceedings inspite of opposition by the plaintiff and does not make an application to the Debt Relief Court, the natural consequence should be that after the expiry of time the stay order should stand vacated rather than that the suit should abate as provided in Section 6(6)(i) of the Act. However, the position may be different if the order for stay has been passed on the application of the plaintiff. In that case he has to move an application under Section 6 of the Debt Relief Court and if he does not do so, it will be legitimate to make an order of abatement. It does not stand to reason that proceedings stayed under Sub-section (i) of Section 5 shall be resumed if the application made under Section 6 is rejected as provided in Sub-section (7) to Section 6 but that would abate if no application is made under Section 6 to the Debt Relief Court after the proceedings are stayed under Section 5(1)(ii). It is however for the Legislature to suitably amend Section 6(6) of the Act and the function of the court is to interpret the provisions of law as they stand. As already observed the order of abatement passed in this case is without jurisdiction because no proper order under Section 5(1)(ii) was passed.
5. The revision application is, therefore, allowed, the order of the court below is set aside and the case is sent back to that court for taking further proceedidgs according to law. If the judgment-debtor presses his application dated 25.1.1968, again, the matter should be decided by the court after satisfying itself that he is a debtor within the meaning of the Act. In the circumstances of the case, the parties shall bear their own costs.