Eswara Kumars Traders vs B. Venkatadri Naidu

R. Bayapu Reddy, J.—This revision is filed questioning the orders of the I Addl.District Munsif, Chittoor dated 24-40-1994 in O.E.P.No.185/90 in O.S.No.1313/87 by which the said execution petition was dismissed holding that the Judgment-Debtor is entitled to the benefits of Act 45/1987 as he is a small farmer.

The petitioner herein is the plaintiff in the above said suit and the said suit was decreed for the suit amount. He later on filed O.E.P.No.185/90 for realising the decretal amount from the respondent-Judgment Debtor by seeking his arrest and detention in Civil Prison. The respondent contested the said petition mainly contending that he is a small farmer and therefore, entitled to the benefits of Act 45/1987 and that the decree debt shall, therefore, be deemed to have been discharged. The learned District Munsif agreed with the contention of the respondent and dismissed the execution petition. The Decree Holder has filed the present revision petition questioning such orders.

The point for consideration in this revision is whether the respondent is a small farmer and entitled to the benefits of Act 45/1987?

The main contention of the learned Counsel for the petitioner-Decree- Holder is that the amount borrowed from him by the respondent cannot be considered as a ''debt'' as the said amount consists of the money paid to the respondent as advance for supply of jaggery by him and that, therefore, the respondent is not entitled to claim the benefits of Act 45/1987. Such a plea was raised even before the lower Court, as seen from the impugned orders. But the learned District Munsif negatived such contention observing that the petitioner-Decree Holder has not established that the Judgment-Debtor has contracted the loan for his business purpose. It is to be seen in this connection that the contention of the petitioner is not that the Judgment-Debtor is a business man and not an agriculturist and, therefore, not entitled to claim the benefits of Act 45/1987. His specific contention is that the Judgment-Debtor borrowed the amount from him towards the price of Jaggery to be supplied by him in future and as such, the said amount cannot be considered as a debt in view of the provisions of Section 3(i)(ix) of the Act (Act 7 of 1977). But the learned District Munsif did not consider this aspect with reference to the said provisions of the Act, but simply negatived the plea of the Decree Holder observing that he has failed to establish that the Judgment Debtor contracted the loan for his business purpose. Section 3(i) (of Act 7 of 1977) defines ''debt'' as follows:-

"3(i) ''debt'' includes any liability owing to a creditor in cash or in kind, whether secured payable under a decree or order of a Civil Court or otherwise and subsisting at the commencement of this Act, but does not include..............."

Section 3(i)(ix) of the said Act is as follows:-

"Any advance of money given to a debtor by a person as the price of goods or property to be sold later on by the debtor."

When the amount is received by the Judgment-Debtor is of the nature as described in Section 3(i)(ix), it cannot be considered as a debt. In the present case, it is specifically contended by the petitioner right from the beginning when he issued Ex.A-2 registered notice prior to the filing of the suit as well as in the plaint, copy of which is marked as Ex.A-1 in the execution proceedings, that the amount was paid to the defendant who agreed to supply Jaggery to him for such amount and that he later on failed to pay such amount to him. It is also mentioned in Ex.A-1, plaint copy, that the respondent having received such amount signed in the day-book maintained by the plaintiff wherein an entry was made to the above said effect. Ex.A-4 is the relevant entry in the day-book marked in the execution proceedings. During his evidence as P.W-1, the petitioner has categorically deposed to the same effect. It is to be seen in this connection that the respondent did not even issue any reply to Ex.A-2 notice which was issued prior to the filing of the suit. Even in the written statement, the respondent did not specifically deny that the amount was received by him agreeing to supply Jaggery to the petitioner and that he signed in the day-book entry also in that connection. The respondent was examined as R.W-1. During his cross-examination when recalled on 7-3-1994 he has admitted Ex.A-4 entry at page 22 in the day-book and he also identified his signature in that entry. He further stated that he received Rs. 1,500 / - under Ex. A-4 entry. He however stated, when he was again recalled for the purpose of further chief examination on 27-9-1994, that at the time when he subscribed his signature in Ex.A-4, there were no entries written and the day-book was kept blank at that time. It is clear from such belated version given by the respondent that there are no bona fides on his part and that he has specifically chosen to give such version with a view to get over the entries in Ex.A-4. It is clear from all these circumstances that the amount received by the respondent from the petitioner under Ex.A-4 entry consists of the amount paid to him towards the value of the Jaggery which he agreed to supply to the petitioner and this is clearly established from the evidence placed on record. The lower Court, however, utterly failed to discuss such evidence and wrongly came to the conclusion that the respondent is a small fanner as the petitioner failed to establish that the respondent is doing any business. When once the amount paid to the respondent is to be considered as the price of the Jaggery which he agreed to supply in future to the petitioner, such amount cannot be considered as a debt in view of the above said provisions of Act 7/1977 read with Act 45/87 and as such, the respondent cannot be said to be entitled to the benefits of Act 45/87. On this ground alone the revision is to be allowed.

The learned Counsel for the petitioner has further tried to contend that the espondent, who is the defendant in the suit, had specifically raised the plea in his written statement filed in the suit to the effect that he is a small farmer and as such entitled to the benefits of Act 45/1987, that the suit was, however, decreed by the trial Court and as such, the respondent is not entitled to raise such a plea once again in the execution proceedings. In order to appreciate this contention, it is to be seen that the respondent filed his written statement in the suit specifically raising the plea that he is a small farmer and, therefore, entitled to the benefits of Act 45/1987. In view of such plea raised in the written statement, the trial Court framed a specific issue in that regard and the suit was coming up for trial. Subsequently the defendant failed to attend the Court and as such, he was set ex parte and an ex parte decree was passed in the suit. The petitioner later on filed the execution petition for realising the decretal amount. The respondent contested the said execution petition once again contending that he is a small farmer and therefore, entitled to the benefits of Act 45/1987. The contention of the learned Counsel for the .respondent, however, is that the issue whether the respondent is a small farmer was not decided by the trial Court as the decree passed in the suit was an ex parte decree and that, therefore, the respondent is not barred from raising such plea once again in the execution proceedings. He has also tried to rely upon the decision of this Court reported in K.N.V.S.N. Babji v. K. Suramma 1984 (2) ALT 119. But a perusal of the said decision, however, shows that the observations made in the said decision cannot be made applicable to the present facts. In that case a specific plea was made by the plaintiff in the plaint to the effect that the defendant was not a small farmer and the defendant did not deny such averment made in the plaint. Under such circumstances, it was sought to be contended by the plaintiff therein that the defendant was not entitled to raise such plea during the course of execution proceedings. It was not a case where the defendant had raised the plea in the written statement filed in that suit and such plea was negatived and he again tried to raise the same plea in the execution proceedings. Under those circumstances, it was observed by this Court in that decision that the Judgment Debtor is not estopped from raising the plea that he is a small farmer on the principle of constructive res judicata in the execution proceedings. The observations made in another decision of this Court reported in Ramanaiah In-re, 1983 (2) ALT 99. clearly apply to the present facts which are similar to the facts concerned in the said decision. In the said case also a plea was set up in the written statement by the defendant claiming the benefit of Act 7/1977 and a specific issue also was framed in that regard. Subsequently the defendant remained ex parte and as such, the suit was decreed ex parte. When the execution petition was filed, the defendant tried to raise the same plea once again. Under those circumstances, it was observed by this Court that the issue originally framed in the suit must be deemed to have been decided against the defendant who remained ex parte and suffered an ex parte decree and as such, he was precluded from raising the same plea once again in the execution proceedings as such plea is barred by res judicata. Therefore, in the present case also, the respondent is not entitled to raise the plea of small farmer once again in the execution proceedings as he had already raised such plea in his written statement filed in the suit and an issue also was framed in that regard and such issue shall be deemed to have been decided against him as the decree was passed, though ex parte, in the suit. In this view also the revision is to be allowed.

In the result the revision petition is allowed but without costs and the orders of the lower Court are set aside as the respondent is not entitled to claim the benefits of Act 45/1987. The lower Court is directed to proceed further in the execution petition after restoring it to its file.