P. Rama Krishna Rao vs P. Narasimha Rao

A. Hanumanthu, J.—This revision is directed against the order and decretal order dated 25-1-1993 passed in E.A. No. 134/91 in E.P. No. 79/87 in O.S. No. 153/86 on the file of the District Munsiff, Nandigama in Krishna District. By the impugned order, the learned District Munsiff held that the judgment-debtor is not a small farmer within the meaning of A.P. Act 45 of 87.

The facts resulting in filing of this revision are as follows:

The respondent herein filed the suit O.S. No. 153/86 for the recovery of amount due under a Pronote, dated 17-3-1983 executed by the petitioner herein and that suit was decreed against the petitioner on 24-7-1985. In execution of that decree, the respondent filed E.P No. 79/87 and he brought the immovable properties of the judgment-debtor-petitioner for sale on 25-3-1991. The E.P. Schedule properties were sold through Court in public auction and one Poppuri Seshagiri Rao was the highest bidder for Rs. 46,000/-. On 1-4-1991 the petitioner-judgment-debtor filed E.A No. 134/91 stating that he is a small farmer as defined in A.P. Act 45 of 87 and that he got only Ac. 1.85 cents to his share, that his joint family consisting of himself and three sons possessed dry land of Acs. 7.42 cents situated in Gokarajupalli and Veerullapdu and that he is having no other source of income and as such, he is entitled to the benefits of A.P. Act 45 of 87 and that his debt should be deemed to have been discharged and as such he is not liable to pay the decretal amount. The respondent-decree-holder filed a counter resisting the claim of the petitioner-judgment-debtor contending that the judgment-debtor is not entitled to the benefits of A.P. Act 45 of 87, that the judgment-debtor is having 10 acres of land with his three minor sons and that the wife of the judgment-debtor is having Acs.4.32 cents of land, that since 20 years the judgment-debtor is cultivating the lands of others on lease, that judgment-debtor had taken a plea in his additional counter filed in the execution petition stating that he is a small farmer, but subsequently he remained ex parte and thus, the present petition is barred by the principle of res judicata. Both sides adduced both oral and documentary evidence, on behalf of the petitioner-JDr. besides examining himself as P.W.I, P.Ws. 2 to 4 were examined and Exs. A-l to A-6 were marked. On behalf of the respondent-decree-holder, besides examining himself as R.W.I, R.Ws.2 to 4 were examined and Exs.B-1 and B-2 were marked. Exs.X-1 and X-2 were also marked through witnesses. On a consideration of oral and documentary evidence on record, the learned District Munsiff proceeded on the presumption that the debt is a family debt and that three sons of the JDr. are minors and the family of the judgment-debtor owns an extent of Acs.7.56 cents and that the judgment-debtor was given an extent of Ac.1.06 cents by his paternal aunt for performing the obsequies of her husband and the total extent of the judgment-debtor is Acs.8.62 cents which is more than the extent of the land prescribed under the Act 45 of 87 and therefore, the learned District Munsiff held that the petitioner is not a small farmer and thus, he is not entitled for the benefits of the Act and consequently, dismissed the petition directing each party to bear its costs. Assailing the said finding of the learned District Munsiff, the judgment-debtor has come up with this revision.

The learned Counsel appearing for the petitioner-judgment-debtor has assailed the correctness of the order of the lower Court contending firstly, that the assumption of the lower Court that the debt in question is a family debt is without any basis and secondly, that the lands possessed by the judgment-debtor''s wife and the shares of the judgment-debtor''s three sons should be excluded from consideration while determining the holding of the judgment-debtor while considering whether the judgment-debtor is a small farmer within the meaning of Act 45 of 87. On the other hand, the learned Counsel for the respondent-decree-holder has tried to sustain the impugned order of the lower Court by contending that the debt is a family debt and that the family of the judgment-debtor consisting of the judgment-debtor and his three minor sons and wife possesses more than the extent of land prescribed under the Act and as such, the judgment-debtor does not come under the definition of small farmer. It is further contended by the learned Counsel for the respondent-decree-holder, that the present plea of the judgment-debtor that he is a small farmer is barred by res judicata.

For a proper appreciation of the questions in this revision, it is useful to refer to the relevant provisions of Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977. This Act was enacted to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers in the State of Andhra Pradesh and it came into force on 29-12-1976. This Act 7 of 77 covers the debts which were in existence on the date on which the said Act came into force. To cover subsequent debts, which are incurred subsequent to 29-12-1976, A.P. Act 45 of 87 was enacted extending the provisions of Act 7 of 77 to all debts incurred between 29-12-1976 and the date of commencement of Act 45 of 87 i.e., 1-1-1988. All the definitions contained in A.P. Act 7 of 77 are made applicable to the debts covered by A.P. Act 45 of 87. Section 3 of the Act relates to the definitions. Section 3(h) defines "creditor" as a person from or in respect of whom the debtor has borrowed or incurred a debt and includes his heirs, legal representatives and assignees." Section 3(1) defines "family" as "in relation to a person, means the individual, the wife, or husband, as the case may be, of such individual and their unmarried minor children." "Debtor" has been defined in Section 3(f) (sic. (j)) as ''an agricultural labourer, a rural artisan, or a small farmer who has borrowed or incurred any debt before the commencement of the Act." Section 3(1) (sic. (0) defines the "debt" as "any liability owing to a creditor in cash or in kind whether secured or unsecured, payable under a decree or order of the civil Court or otherwise, and subsisting at the commencement of this Act". However, it is provided u/s 3(i) (xii) that "debt" does not include any debt contracted by a debtor from a person who is an agricultural labourer, a rural artisan or a small farmer. From this provision, it follows that even if a debtor is a small farmer, an agricultural, labourer or a rural artisan entitled to the benefits of the Act, those benefits, will not be available to him if the creditor also is an agricultural labourer, a rural artisan or a small farmer. Section 3(t) defines the "small farmer". Section 4(1) provides that "notwithstanding anything in the various Acts mentioned in that Section or any other law for the time being in force or any contract or other instruments having the force of law and save as otherwise provided in this Act with effect on and from the commencement of the Act, every debt including interest, if any, owing to any creditor by any agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged." u/s 4(2) (b),"all suits or proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of this Act against any debtor for the recovery of any such debt including interest if any, shall abate." Proviso to this Section relates to the exceptions for application of this Act. It is not disputed that the decree-debt in this case was existing by the date of commencement of A.P. Act 45 of 87. Therefore, the judgment-debtor is entitled for the relief under the Act if he is able to establish that he comes within the definition of agricultural labourer, artisan or a small farmer.

Section 3(t) of Act 7 of 77 contains the definition of "small farmer". On an analysis of definition of "small farmer" contained in Section 3(t) of Act 7 of 77, the larger Bench of this Court in "P. Masthanaiah v. Ch. Veeraiah and Ors." 1987 (1) ALT 166 : 1987 (1) APLJ 203 held that "for being a small farmer, a person must satisfy the following requirements:

(1) His principal means of livelihood should be income derived from agricultural land.

(2) He must hold and personally cultivate agricultural land not exceeding the extent specified, or he must have cultivated as a tenant or a sharecropper or as a mortgagee with possession (usufructory mortgagee) agricultural lands not exceeding the limit specified.

(3) If he does not belong to any of the Scheduled Tribes, the land which he holds and cultivates, or cultivates as a tenant, or a share-cropper or as a mortgagee with possession should not exceed one hectar if it is wet or two hectars if it is dry.

(4) If such a person is a member of Scheduled Tribe, the agricultural lands which he holds and personally cultivates or which he cultivated as a tenant or as a share-cropper or as a mortgagee with possession should not exceed two hectars if it is wet or four hectares if it is dry; and

(5) In either event, the annual house-hold income of such person other than from agriculture, should not exceed Rs. 1,200/- in any two years within three years immediately preceding to the commencement of the Act."

The above analysis shows that four categories of persons can be called as small farmers viz.,

(1) Person who holds and personally cultivates agricultural lands.

(2) Person who does not hold an agricultural land but merely cultivates it as a tenant.

(3) Person who does not hold agricultural land but merely cultivates it as a share-cropper and;

(4) Person who does not hold (own) agricultural land, but cultivates it as a mortgagee with possession - provided all of them are within the definition."

For the purpose of computation of holding of a debtor or creditor, Full Bench of our Court in Dasam China Pappayya Raju Vs. Sripada Ramachandra Prabhakara Rao, on a consideration of the definition of "small farmer" and "family" in the Act held that "where an individual claims to be a small farmer as defined by Section 3(t), the land held and cultivated by him alone must be taken into consideration. If, on the other hand, it is a ''family'' which claims to be a small farmer, it is the aggregate of the land held and cultivated by that ''family'' that has to be taken into consideration. It is not permissible to aggregate the lands held by the members of the family when the individual alone is a debtor or a creditor." It is further held in that decision that "when a debt is owed by a joint family, it has to be split up into different units according to the expression "family" for the purpose of giving benefit under the Act. Otherwise, there was no purpose of defining the expression "family" in that manner." In other words, the Full Bench held that if a debt is an individual debt, the land which the debtor alone holds and personally cultivates should be taken into consideration and the lands belonging to the husband or the wife, as the case may be, and that of the minor children should not be taken into consideration; and if the debt is a family debt, it has to be split up into different units of family as defined in the Act and it has to be considered whether each unit is a small farmer or not and each unit of the joint family consisting of an individual husband or wife, as the case may be, of such individual and their unmarried minor children should be taken as judgment-debtors within the meaning of Act in respect of each share of the debt owed by the family.

According to Section 13 of Act 7 of 77, 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. It is no doubt true that interpreting this Section, this Court held that "the initial onus to prove that he is a small farmer, within the meaning of this Act, lies on the debtor before the statutory burden of proof is shifted to the creditor."

In the instant case, as seen from the impugned order, the lower Court has proceeded with an assumption that the decree-debt is a "family debt". But there is no material on record to come to the conclusion that it is a family debt. Admittedly, the decree was obtained only against the judgment-debtor and the other members of his family were not impleaded as parties to the suit. Neither the pleadings nor the judgment in the suit are placed on record. Only the decree is available on record and it is an ex parte decree passed against the petitioner-judgment-debtor alone and it reads thus:

"This Court doth order and decree, that the defendant do pay the plaintiff a sum of Rs. 16,932/- with interest at 6% per annum on the principal sum of Rs. 12,450/- from the date of suit i.e., 14-3-1986 till the date of realisation and do also pay a sum of Rs. 1,829.55 towards costs of the suit."

From a perusal of this decree, it is obvious that it is a personal decree against the judgment-debtor and it does not indicate that it is a family debt. Further, even in the execution petition filed by him, the decree-holder has not taken the plea that the decree debt in question is a family debt which was incurred by the judgment-debtor for the purpose of his family. The respondent-decree-holder who got himself examined as R.W.I in E.A No. 134/91 did not specifically depose that the debt is a family debt and that the judgment-debtor had incurred this debt and for the necessities of the family or that it is binding on all the family members. Thus, there is no material on record to come to the conclusion that the debt in question is a family debt. Therefore, it must be held that the assumption of the lower Court that it is a family debt is without any basis and as such, it is clearly unsustainable. If the debt is treated as individual debt of the judgment-debtor as it should be, the land held and cultivated by him alone should be taken into consideration for determining whether he comes within the definition of small farmer,. It is not permissible to aggregate the lands held by the other members of his family i.e., his wife and unmarried minor children as held by the Full Bench of our High Court in "Dasam Chinna Papaih Raju v. Sripada Ramachandra Prabharka Rao" (2 supra). It therefore, follows that the land held by the Judgment-debtor''s wife and the shares of his three sons, whether they are major or minors, cannot be computed in the holding of the judgment-debtor in deciding whether he is a small farmer or not within the meaning of the Act.

As seen from the impugned order, the trial Court on a consideration of the evidence on record held that the family of the judgment-debtor holds and cultivates Acs.9.46 cents and that as the three sons of the petitioner-judgment-debtor are minors, their shares have to be aggregated in the holding of the judgment-debtor and as such, it exceeded the extent of the land prescribed under the Act. This approach of the lower Court is incorrect. As earlier stated, as there is nothing on record to show that the debt is a family debt, the shares of the minor sons of the judgment-debtors have to be excluded from the holding of the judgment-debtor for determining whether the judgment-debtor is a small farmer or not. When the shares of the three sons of the J.Dr. are excluded from consideration, the share of the judgment-debtor which comes to Acs.2.11 cents of dry land is within the extent of the land prescribed under the Act and as such, the petitioner-judgment-debtor comes within the definition of "small farmer" and as such, he is entitled to the benefits under Act 45 of 87.

It is vehemently contended by the learned Counsel for the respondent-decree-holder that the judgment-debtor raised the plea that he is a small farmer and that he is entitled to the benefits of the Act 45 of 87 in his counter filed in the execution proceedings initiated against him and that he did not pursue the same as he remained ex parte and hence, the present application is barred by constructive res judicata. Admittedly, the respondent obtained an ex parte decree against the judgment-debtor. It is true that while the decree was under execution against him, the judgment-debtor raised a plea that he is a small farmer and that the decree is not executable against him under the provisions of Act 45 of 1987. But, subsequently, he remained ex parte and the execution proceedings were proceeded with and his properties were auctioned by the Court. Within one week thereafter, he had come up with the petition E.A No. 134/91 to declare him as a small farmer and that the decree debt should be deemed to have been discharged under the provisions of Act 45 of 87. Hence, the respondent-decree-holder has taken up the plea that the present petition is barred by constructive res judicata.

The point in issue has come up for consideration before the Division Bench of this Court in "C. Kasi Vishwanadham v. A. Venkata Subba Rao" 1984 (2) ALT 173.

It is relevant to extract the following observations contained in the above Division Bench decision:

"The next aspect of the case, which is rather crucial, is whether the constructive res judicata as postulated u/s 11(IV) of the Code of Civil Procedure, will have a play and so, will bar the judgment-debtor, who remained ex parte in the suit, from raising the plea that he is entitled to the benefit of the provisions of the Act, in execution proceedings. This, therefore, calls for further inquiry as to whether the decree has been granted after due inquiry and consequential adjudication by the Court that the defendant was not a ''debtor'' within the meaning of the Act. In which case alone, in our view, it would not be open to the debtor to raise the plea once again in the execution proceedings as the judgment-debtor must be deemed to have had an opportunity to repel that he was not a ''debtor'' within the meaning of the Act. This will be so, even if he remained ex parte in the suit. What, therefore, follows is that since the Special enactment ordains the creditor in order to succeed in the suit for the recovery of any ''debt'' to establish that the debtor-defendant is not a debtor'' within the meaning of the Act; inasmuch as u/s 4 not only the ''debt'' is deemed to have been discharged, but, even the pending proceedings, suit or execution proceeding, shall abate. Therefore, the creditor cannot successfully invoke the doctrine of res judicata because of the provisions of Section 4 being special, will override the general provisions enacted in Section 11 C.P.C. insofar as they are inconsistent therewith, under the maxim generalia specialibus non derogant.

Yet another aspect. Even if the decree is obtained ex parte by the creditor and now the execution is levied against, the said proceedings shall stand abated within the meaning of Section 4(2) (b), unless it is established by the creditor that before the said decree was obtained, it was adjudicated by the Court that the judgment-debtor was not a ''debtor'' within the meaning of the Act. In other words, when the execution is levied, the judgment-debtor would be entitled to canvass that the decree is a nullity and therefore, the Court suffers from inherent want of jurisdiction to execute the said decree. It would be quite apparent from the judgment and decree as to whether the judgment-debtor was or was not adjudcated as ''debtor'' within the meaning of the Act. Therefore, it would be a case of an error apparent on the face of the record, in which case the Court will lack jurisdiction to execute the void decree. (See Kausalya Devi v. K.L. Bansal) and K.C. Manchanda v. Murree Brewery Co.)

Viewed from any angle, therefore, the judgment-debtor cannot be barred, under the principle of constructive res judicata, from raising the plea in the execution proceedings against a decree obtained ex parte or otherwise for the recovery of debt, that he is the ''debtor'' within the � meaning of the Act. The decree-holder can succeed only if he establishes that there has been already an adjudication in the suit that the judgment-debtor was not ''debtor'' within the meaning of the Act."

The learned Counsel for the respondent tries to distinguish the facts stating that the judgment-debtor had raised the objection that he is a small farmer at the execution proceedings stage and pursued the matter. But, whereas in the instant case, the judgment-debtor having filed the counter in the execution proceedings initiated against him, remained ex parte subsequently and later on come up with this application. In my opinion that decision of the Division Bench applies equally to the facts in this case. There is no adjudication by the trial Court before passing the decree that the defendant-judgment-debtor is not a debtor within the meaning of Act 45 of 87 nor subsequently, there is an adjudication of the plea taken by the judgment-debtor in the execution proceedings that he is not a small farmer. Therefore, ; he is entitled to raise such a plea. It is only when once the plea is raised and decided that the defendant is not a ''debtor'' within the meaning of the Act, the ''debtor'' cannot raise such objection once again even on the ground that he remained ex parte and only in such cases, he would be barred by the principle of constructive res judicata. In the instant case, as earlier stated in spite of the plea taken by the judgment-debtor in the execution proceedings that he is a ''small farmer'', there is no finding on such a plea by the executing Court. Hence, the judgment-debtor is not barred by the principle of constructive res judicata. The learned Counsel for the respondent relied on the decision of the single Judge of this Court in "V. Ramanaiah v. P. Akkaiah" 1983 (2) ALT 99 wherein it is held that it is not open to the defendant-judgment-debtor to raise the plea that he is a small farmer at the time of the execution of the decree when he had already set up such a plea in his written statement, but subsequently remained ex parte. But, this decision has been over-ruled by the Division Bench in "Kasi Vishwanadham v. Subba Rao" (stated 3 supra). Further, in Smt. Isabella Johnson Vs. M.A. Susai, the Supreme Court held: "there can be no estoppel or resjudicata on a pure question of law." The question whether the judgment-debtor is entitled to the benefits under A.P. Act 45 of 87 is purely a question of law and as such, there can be no estoppel or res judicata as held by the Supreme Court.

In the light of my above discussion I hold that the petitioner-judgment-debtor is a "small farmer" and as such, he is entitled to the benefits under A.P. Act 45 of 87 and the decree-debt in O.S No. 153/86 on the file of the District Munsiff, Nandigama is deemed to have been discharged.

In the result, the revision petition is allowed. The order and decretal order in E.A No. 134/91 in E.P. No. 79/87 in O.S No. 153/86 on the file of the District Munsiff, Nandigama under revision is set aside and that E.A. No. 134/91 is allowed declaring that the judgment-debtor is a small farmer and as such, entitled to the benefits under A.P. Act 45 of 87 and that the decree-debt in O.S No. 153/86 is deemed to have been discharged. Under the circumstances of this case, there is no order as to costs.