Kanala Ramaiah and Another vs D. Venkata Ramana

Lingaraja Rath, J.—The revision petitioners, the first petitioner being the father of the second, are the judgment-debtors in E.P.No. 25 of 1992 in which they raised a plea of the decree being nullity and not executable against them, as they are small farmers entitled to the protection of the A.P. Agricultural Indebtedness (Relief) Act, 1977, Act 7 of 1977 (hereinafter referred to as the Act). The plea having been negatived after considering the evidence led in the proceedings, the present revision has been filed.

The submission of the learned counsel for the petitioners is that the order of the learned Munsif suffers from material irregularity inasmuch as he has perversed himself in not deciding the issues in question but has held the, petitioners to be not small farmers only because, he held, they maintained a Hero Honda Motor Cycle, and that in another suit filed by the brother of the judgment holder, they had not taken the plea of being small farmers.

The respondent decree-holder brought O.S.No. 124/86, against the petitioners as defendants Nos. 1 and 2 and one J. Venkata Ramana as defendant No. 3 for recovery of a sum of Rs. 7,320/- representing principal and interest due on the mortgage executed on 10-6-1974 by the petitioners in favour of him. The third defendant was the purchaser of the property. The petitioners even though appeared and filed written statement and issues were framed to the suit, yet they absented themselves. The suit was contested by the third defendant and was decreed ex parte against the petitioners. Execution being levied, the plea of protection under the Act was raised in defence.

So far as the findings of the executing Court negativing the plea of the petitioners are concerned, it is argued that the findings have been given without keeping the statutory provisions in view. "Small Farmer" has been defined in Section 3 (t) of the Act as a person, when he is a non-schedule tribe, as whose principal means of livelihood is income derived from agricultural land which does not exceed, if the land is wet, one hectare, or two hectares if it is dry and which he holds and personally cultivates or cultivates as tenant or sharecropper or mortgagee with possession. If the learned Court was to decide the question whether the petitioners are small farmers or not, returning of finding was necessary in respect of the ingredients of the provision to declare status of the petitioners. Such status cannot be denied either because they were maintaining a Hero Honda Motor Cycle or that in another suit such plea had not been raised or that that Petitioner No. 1 earns Rs. 500/- to 600/- by selling milk which was also a reasoning advanced by the executing Court to deny them the protection.

But there is another question to be gone into. In the suit written statement was filed by the petitioners claiming the status of small farmer. Issue No. 3 framed in the suit was:

"Whether the defendants are small farmers entitled to the benefit of Act 7 of 1977, if the suit mortgage bond is held to be true?"

The judgment holder examined himself in the suit and deposed that the petitioners are doing seasonal business like paddy, tamarind and ground-nuts and are also vending milk. The sworn statement was that they derive annual income of Rs. 25,000/- by way of business and as such they are not small farmers. Having regard to the evidence the Court held in the judgment:

"In view of the circumstances of the case and in view of the material available on record I hold issues 2 to 6 in favour of the plaintiff that the suit mortgage bond is true/valid and binding on defendants, that the defendants are not small farmers entitled to the benefit of Act 7of 1977......"

There was hence not only the plea of small farmer was raised, but also the plaintiff-judgment holder led evidence through himself negativing the plea, and the Court passed the judgment negativing the plea of the petitioners being small farmer.

It is the submission of the learned counsel for the petitioners, tenaciously advanced, that the plea whether the judgment debtors are small farmers or not is available to be raised even during the execution proceedings as the determination of the question renders the decree passed a nullity since u/s 4 of the Act, not only the mortgage stands automatically discharged but that even the suit was not maintainable and pending suits were to abate. According to him the question whether the decree is a nullity is available to be raised at any time even in execution proceedings, a submission which cannot but be accepted in view of the decision of the Supreme Court in Kiran Singh v. Chaman Paswan,1 Reliance is also placed by him on Section 13 of the Act which places the burden on the creditor to prove in any suit or proceeding that the debtor is not entitled to the protection of the Act. Developing, he submits that since there has been no adjudication because of the ex parte nature of the judgment, the judgment debtors would be entitled to agitate the question before the executing Court.

Mr. Gopala Rao in support of his contention has placed reliance on two decisions of this Court in K.N.V.S.N. Babji v. K. Surama,2 the judgment of a learned single Judge and another of a Division Bench in C. Kasi Viswanatham v. A. Venkata Subba Rao,3 which has also been relied upon by the learned single Judge in his decision. Another unreported decision, notes of which had been reported in G. Venkateswarlu v. J. Bapaiah and Ors.,4 has also been relied on. Since the decision of the Division Bench is otherwise binding and the learned single Judge also referred to the decision, it is necessary to refer to the same. Their Lordships in the case held that 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 that the defendant is not a ''debtor'', but also has got it adjudicated on adducing evidence that the defendant was not a ''debtor''. The ''debtor'' will not be barred by the principle of contructive 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. The principle was decided strictly within the wordings of Section 13 of the Act which may also be extracted.

"Section 13. In any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any law for the time being in force, lie on the creditor."

There is hence no denying the fact that the burden of proof to prove a person as a ''debtor'' not entitled to the benefits of the Act in a suit or other proceedings lies on the creditor.

But the burden of proof so placed upon the creditor is apparently a negative one, i.e. the creditor is called upon to establish a negative fact of the debtor being not entitled to the benefits under the Act. As is well known a negative onus is discharged by denial. If after the denial by the creditor the plaintiff would have asserted the fact of his being entitled to the protection of the Act or would have placed materials to show of his being covered by the definition of a small farmer, the onus would have again shifted to the creditor. But that is not the case here. Not only the question was raised but a specific issue also was framed and evidence was led by the creditor denying the fact of the petitioners being small farmers. An ex parte judgment is also a judgment in law as any other judgment and evidence led in ex parte proceedings is also evidence. The findings recorded in an ex parte judgment are as unassailable as the findings in any other judgment and become final unless they are reversed in appeal. It would have been another matter if such a plea would not have been raised in the suit, no issue would have been framed and no evidence led. If that would have been the case, it would have been of course open to the petitioners to raise the question at the execution stage and get it adjudicated, as has been decided both by the Division Bench and by the learned Single Judge. But since it is otherwise, the petitioners cannot be allowed to avail a second opportunity to raise and get determined a question of fact which has already been determined by a competent Court and the principle of res judicate would apply. Taking that view of the matter I hold that such a plea is not available for the defendants to raise at the execution stage and hence I do not find any merit in this revision petition. It is therefore dismissed. No costs.

Learned counsel for the petitioners submits that the sale of the mortgaged property is posted to to-day, but that he may be allowed to clear the dues by instalments. Such a plea has to be advanced before the Executing Court itself which has to dispose of the question after hearing the judgment-holder. But however, to enable the petitioners to raise the plea it is directed that the sale, if held to-day, would not be confirmed for a period of 10 days during which period the petitioners may present a petition before the Executing Court for grant of instalments. If the petition is presented, the same would be disposed of by the Executing Court on its own merit after hearing the parties.