G. Adinarayana @ Adeppa vs P.V. Siddaiah

The short question which falls for consideration in the present Civil Revision Petition is whether the revision petitioner-judgment-debtor, who had raised the plea of small farmer in the written statement filed in the suit and subsequently suffered an ex parte decree, can re-agitate the same at the stage of execution?

The facts in brief are as follows: The respondent-decree holder in the present CRP filed S.C. No. 22 of 1990 on the file of the Senior Civil Judge, Kadiri, and in the said suit the revision petitioner-judgment debtor had filed written statement raising the plea that he is a small farmer, who subsequently had not contested the suit and ultimately the suit was decreed on 19.11.1991. For the purpose of convenience, the parties are referred to as "judgment-debtor and "decree holder". The decree holder filed E.P. No. 35 of 1994 in S.C. No. 22 of 1990 on the file of the Senior Civil Judge, Kadiri, for execution of the decree by seeking the arrest of the judgment-debtor. The other factual details may not be necessary for the purpose of deciding the present CRP. It is suffice to state that the Judgment-debtor again had taken a stand that he is a small farmer within the meaning of A.P. Agricultural Indebtedness Relief Act, Act 7 of 1977 and he is entitled for the benefits and protection of the provisions of Act 7 of 1977 as extended by Act 45 of 1987. The A.P. Agricultural Indebtedness Relief Act, 1977 is hereinafter referred to as ''the Act'' for the purpose of convenience.

The court below had rejected the objection taken by the Judgment-debtor mainly on the ground that inasmuch as the same objection was raised at the stage of suit, he cannot be permitted to raise the same self-same objection at the stage of execution again since the same will be barred by res judicata. The court below had recorded the evidence also. The decree holder was examined as PW-1 and the written statement copy dated 27.8.1990 was marked as Ex.A-1. The Judgment-debtor was examined as RW-1 and Ex.B-1, D-Form patta, and Ex.B-2 registered sale deed were marked. On appreciation of both oral and documentary evidence, after rejecting the objection raised by the Judgment-debtor, the court below had granted a month''s time to the Judgment-debtor for payment of decretal amount, failing which the decree holder was given liberty to further proceed with the matter in accordance with law. Aggrieved by the said order made in E.P. No. 35 of 1994 in S.C. No. 22 of 1990 on the file of the Senior Civil Judge, Kadiri, the Judgment-debtor had filed the present CRP.

Heard both the counsel. There is no much controversy as far as factual aspects are concerned and hence the details relating to these factual aspects need not be further referred to. Ms. Hemalatha, counsel representing Mr. O. Manoher Reddy, learned counsel for the petitioner, had strongly contended that the mere fact that the plea of small farmer was taken in the written statement is of no consequence since the decree was only an ex parte decree and it cannot be said that this aspect relating to small farmer had been decided on merits at the stage of suit and, hence, the Judgment-debtor is perfectly justified in raising that plea again which is a statutory benefit conferred on him by the Act. The learned counsel had placed strong reliance on the judgment of a Division Bench in C. KASI VISWANATHAM VS. A. VENKATA SUBBA RAO 1984[2] ALT 173.

Mr. P. Murali Krishna Prasad, counsel representing Mr. M.V. Suresh, learned counsel appearing for the decree holder, had strenuously contended that the suit was decreed on 19.11.1991 and the learned counsel also had drawn my attention to the portions of Ex.A-1, in which the plea of small farmer was specifically taken by the Judgment-debtor and subsequently it was his own fault that the Judgment-debtor did not further pursue the matter and, consequently, a decree was passed. Whether a decree is an ex parte decree or a contested decree, when the defendant in the suit had taken a specific plea at the stage of the suit and the matter was decreed, it should be taken as though that aspect was contested in the suit itself and hence the defendant, as Judgment-debtor in the execution, again cannot be permitted to raise the same plea since it is barred by the principle of res judicata and also constructive res judicata. The learned counsel had placed reliance on the judgments in ESWARA KUMARS TRADERS VS. B. VENKATADRI NAIDU 1997[3]APLJ 444, VADLAMUDI RAMANAIAH 1983[2] ALT 99, B. VENKATA RAMANA RAJU VS. BONDA KRISHNAJI RAO AND ANOTHER 1984 [2]ALT 119, Karri Venkata Rama Reddy Vs. Megalapu Viswanatham, , and Kanala Ramaiah and Another Vs. D. Venkata Ramana, . The learned counsel also submitted that the Division Bench (1 supra) has rendered the judgment in view of the peculiar facts of that case only and, on the facts, the decision is distinguishable and it is not applicable to the facts of the present case.

In the case cited supra (1), the Division Bench of this Court at page 191, while summing up, had observed at paragraph 55 as follows:

"1. A decree obtained ex parte or otherwise against a ''debtor'' within the meaning of the Act 7 of 1977, is not executable, unless in the suit the creditor-plaintiff has not only raised the plea and got an issue framed to the effect that the defendant is not a ''debtor'' but also got adjudicated on adducing evidence that the defandant was not a debtor.

The debtor will not be barred by the principle of constructive res judicata, from raising the plea that the ex parte decree obtained against him is not executable inasmuch as the plea of ''debtor'' was neither raised, much less adjudicated, on the ground that the debt stood discharged on the day when the Act came into being and any execution proceedings, if levied, will abate u/s 4 (2) of the Act.

Same is the view even if the debtor appeared in the suit, as the creditor is obligated to establish that the defendant is not the debtor; it is then only the Court gets jurisdiction, to proceed further.

Every debt, on the coming into force of the Act, stands ipso facto, discharged; so the Court inherently lacks jurisdiction to execute the decree, which is a nullity. In fact, the execution proceedings abate. It, however, gets jurisdiction if it is established that the judgment-debtor is not the debtor within the meaning of the Act.

When once the plea is raised and decided, that the defendant is not the debtor within the meaning of the Act, the debtor cannot raise the objection once again in execution proceedings, even on the ground that he remained ex parte, as he would be barred by constructive res judicata.

The general rule of constructive res judicata as envisaged u/s 11 (IV) of the Code of Civil Procedure, cannot override the special provisions of the Act under the maxim generalia specialibus non derogant.

In a suit filed before the advent of the Act, but the decree granted subsequent to the Act, shall not be entertained by the executing Court unless it is established by the creditor-plaintiff that not only the plea that the defendant was not a ''debtor'' within the meaning of the Act, was raised but also was decided by the Court that the defendant was not the ''debtor''. This will be so, whether the decree granted was ex parte or otherwise."

It is pertinent to note that the Division Bench at paragraph 55 (5) had observed as follows:

"When once the plea is raised and decided, that the defendant is not the debtor within the meaning of the Act, the debtor cannot raise the objection once again in execution proceedings, even on the ground that he remained ex parte, as he would be barred by constructive res judicata."

Coming to the facts on hand, here is a case where the Judgment-debtor, as defendant in the suit, had raised the specific plea that he is entitled to the benefits of the Act but subsequently had not pursued his remedy and, hence, he cannot now contend that there was no opportunity for him to contest the matter on that particular aspect. Having failed to contest the matter and having invited the decision, such party cannot be permitted to re-agitate the same plea again in the light of Section 11 CPC and also the general principles of res judicata since the doctrine of res judicata is more based on public policy.

In Law of Res Judicata by me at page (4) of the commentary, while dealing with this doctrine, I had expressed:

" The doctrine of resjudicata is based on the common law maxim "nemo debit bus vexari prouna eddem causa" and this doctrine is incorporated in Section 11 Civil Procedure Code. Though the very history of CPC in this country begins in the year 1959, this doctrine has been well recognized both in this country, in other Common Wealth countries, England etc., even prior to the CPC of 1859. The principle underlying the doctrine of res judicata had been well explained by Sir William DeGray in his classic statement on this doctrine in Duchess of Kingstone''s case :

"From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true ; first that Judgment of court of concurrent Jurisdiction, directly upon the point, is, as a plea, a bar, or as evidence conclusive, between the same parties upon the same matter, directly in question in another court; Secondly that the Judgment of a court of exclusive Jurisdiction, directly on the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose. But neither the Judgment of a court, of concurrent or exclusive Jurisdiction, is evidence of any matter which came collaterally in question, though within their Jurisdiction nor of any matter, incidentally cognizable nor of any matter to be inferred by argument from the Judgment".

The principles relating to the applicability of the doctrine of res judicata are well settled and hence no elaborate discussion is needed in this regard. But, however, in the case of Ramanaiah ( 3 supra), it was held that a plea was set up in the written statement claiming the benefit under the Act and issue No. 2 in the suit related to the same and the defendant remained absent and he was set ex parte and the suit was decreed ex parte and, hence, it was held that the issue must be deemed to have been decided against the defendant and he was precluded from raising the said plea at the time of execution as the plea is barred by res judicata.

In Kanala Ramaiah''s case ( 6 supra), it was held that when a plea of small farmer had been raised in the written statement of the suit and issue was framed though the suit was not contested by the debtors and the plea was rejected by the trial court on the evidence of the creditor and ex parte judgment was passed, the principle of res judicata applies to such findings.

In the case of Eswara Kumars Traders (2 supra), it was held that the respondent is not entitled to raise the plea of small farmer once again in 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 the case of Karri Venkata Rama Reddy ( 5 supra), it was observed that the debtor should first enter into the witness box and produce prima facie proof that he is entitled to the benefits of Act 7 of 1977 i.e. the debtor falls within the definition of Section 3 (j). Thereafter, the onus shifts to the creditor, u/s 13, to establish that the debtor is not entitled to the benefits of the Act.

It is needless to state that the decision of the Division Bench ( 1 supra) on which strong reliance was placed by the revision petitioner is distinguishable on facts and further the principle laid down by the Division Bench is in no way in conflict with the views expressed by the learned single Judges in the decisions specified supra.

Hence, I am of the considered opinion that the Judgment-debtor, as defendant in the suit, if he had raised the specific plea of small farmer at the stage of the suit and had suffered the decree, he cannot take advantage of his own wrong of not contesting the matter and suffering ex parte decree and then contending that again he is entitled to raise the same plea at the stage of execution proceedings, it will be definitely barred by the principles of res judicata in the same proceeding since that aspect should be deemed to have been decided in the suit itself and at a different stage i.e. at the stage of execution in the same proceeding, again it cannot be re-agitated.

In the light of the detailed discussion on the question in controversy, the Civil Revision Petition is devoid of merits and hence accordingly dismissed with costs.