Andhra HC (Pre-Telangana)
Byreddy Govinda Reddy V. Talanakula vs Suresh Babu on 15 December, 2000
Equivalent citations: 2001(1)ALD457, 2001(1)ALT549
Author: S. B. Sinha
Bench: S. B. Sinha
ORDER
1. This application is directed against the judgment and order dated 29th November, 1997 passed by Sri Y. Ganapathi Rao, District Munsif, Kanigiri, Prakasam District, in EP.No.2 of 1977 arising out of OS No.166 of 1993 whereby and whereunder he allowed an application filed by the decree holder-opposite party to arrest and to put the petitioner in civil prison for the purpose of realisation of the decretal amount.
2. The sole question which arises for consideration was as to whether the petitioner herein was a small farmer within the meaning of the provisions of Acts 7 of 1977, 45 of 1987 and 2 of 1990.
3. Both the parties examined themselves. The petitioner herein had proved the Ryotwari Passbook which was marked as Ex.R1. From a perusal of the judgment under revision, it does not appear that the decree holder had been able to prove that the petitioner herein is not a small farmer within the meaning of the provisions of the said Act. The learned trial judge held that-
"Ex.R1 is issued during 1989. Recently the Government of A.P. passed an Act for issuing Ryotwari passbooks according to ROR. Act. In view of advent of ROR Act, the passbook marked under Ex.R1 has no value it was issued previously. The passbook under ROR. as per the present Act is different from Ex.Rl. Hence, the entries in Ex.R1 cannot be considered as conclusive proof regarding the possession of property by the J.Dr. If J.Dr. filed the passbook issued under the new ROR Act there can be any amount of believing his version. He failed to file the passbook issued under the new Act, thereby it shows that he has not come to the Court within clean hands. It is also found that as per his evidence his sons also got earning something and they are also living in the joint family. The amount was borrowed by the J.Dr. family thereby the J.Dr. fails to prove that the entire joint family got only the properties mentioned under Ex.R1. If the J. Dr. proved that he only got Ac.7.00 of land and the same is for the entire joint family then the burden shifts to D.Hr. to disprove that the J.Dr. is not small farmer. The J.Dr. failed to examine any other witness to show that he only got the properties mentioned in Ex.R-1 and those properties were for the entire joint family. Recently the Government of A.P. passed ROR Act under which new passbooks were issued but the J.Dr. failed to file those passbooks, thereby this Court cannot rely upon the entries in Ex.R1, unless it was proved by any other independent witness. Hence I found that the J.Dr. got means to pay the decretal amount and he is not entitled for the benefits under Small Farmers Act, thereby he is liable for arrest."
4. It is now a well settled principle of law that the Court must pose unto it a correct question so as to enable it to arrive at a correct determination of fact. The learned trial Judge appears to have, while passing the impugned order, not only ignored the implications of Section 51 of the Code of Civil Procedure but failed to take into consideration that in terms of the scheme of the aforementioned Acts, the burden of proof lay upon the decree holder.
5. Sub-sections (1) and (2) of Section 4 of the A.P. Agricultural Indebtedness (Relief) Act, 1977 (Act 7 of 1977) are material provisions, which read thus:
"4. Discharge of debts and relief to debtors :-(1) Notwithstanding anything in the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938, the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349-F, the Andhra Pradesh (Andhra Area) Pawn Brokers Act, 1943, the Andhra Pradesh (Telangana Area) Agricultural Debtors Relief Act, 1956, the Andhra Pradesh (Scheduled Area) Money Lenders Regulation, 1960, the Andhra Pradesh Indebted Agriculturists, Landless Labourers and Artisans (Temporary Relief) Act, 1976 or any other law for the time being in force or any contract or other instrument having the force of law and save as otherwise provided in this Act with effect on and from the commencement of this Act, every debt, including interest, if any, owing to any creditor by an agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged.
2(a) No Civil Court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of the debt including interest, if any, which is deemed to be discharged under subsection (1) :
Provided that where any suit or other proceeding is instituted jointly against the debtor and any other person, nothing in this sub-section shall apply to the maintainability of such suit or proceeding insofar as it relates to such other person.
(b) All suits and other 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:
Provided that nothing in this clause shall apply to the sale, in respect of any such debt, of-
(i) any movable property held and concluded before the commencement of this Act;
(ii) any immovable property, confirmed before such commencement."
6. The aforementioned Act, therefore, contains a non-obstante clause. It prevails over all other Acts. By reason of the provisions of sub-section 2(a), the jurisdiction of the Civil Court to entertain a suit or any other proceeding is barred. By reason of clause (b) of sub-section (2), the attachments and execution proceedings pending at the commencement of the Act against a debtor for recovery of any such debt including interest would abate. The said Act was in force upto 29-12-1977. Thereafter, Act 45 of 1987 was enacted in terms whereof some exemptions have been granted for the period 30-12-1977 to 1-1-1988, which continued by reason of Act 2 of 1990 from 2-1-1988 to 1-3-1990. The aforementioned Act was, therefore, enacted for granting certain benefits upon the small farmers. If the judgment debtor could prove himself to be a small farmer in terms of the scheme of the aforementioned Acts, he stood discharged. If he stood discharged, the question of realization of decretal amount from him by taking recourse to the provisions of Section 51 of the Code of Civil Procedure read with Order 21, Rule 37 thereof did not and could not arise.
7. The learned trial Judge, having regard to the aforementioned finding, must be held to have misdirected himself in law insofar as he failed to pose unto himself the correct question and thus arrived at a wrong decision. Such a misdirection in law amounts to jurisdictional error within the meaning of Section 115 of the Code of Civil Procedure as also Article 227 of the Constitution of India. The learned trial Judge, in fact, has thrown the entire burden upon the petitioner although the burden of proof lay upon the decree holder in terms of the provisions of the said Act. Further more, the finding of the learned trial Court is also based on surmises and conjectures.
8. For the reasons aforementioned, the impugned order cannot be sustained which is set aside accordingly and the matter is remitted to the learned trial Judge for consideration of the matter afresh in accordance with law.
9. The civil revision petition is allowed. No order as to costs.