Andhra HC (Pre-Telangana)
Sivakumaram Chengal Rao vs P. Paramasivappa on 18 June, 1996
Equivalent citations: 1996(3)ALT248, 1996 A I H C 5125, (1996) 2 LS 217, (1996) 3 ANDHLD 968, (1996) 3 ANDH LT 248
ORDER Motilal B. Naik, J.
1. The petitioner is the judgment debtor in O.E.P.No. 153 of 1987 in O.S.No. 138 of 1986 on the file of the Principal District Munsif, Punganur. The suit, which was instituted in the year 1986 was decreed on 5-5-1987. The plaintiff, the respondent herein filed O.E.P.No. 153 of 1987. In the Q.E.P., the petitioner-judgment debtor took a categorical stand that he is a small farmer and so he is entitled to the benefit of Act 45 of 1987. In support of his contention, the petitioner-defendant examined himself in O.E.P.No. 153 of 1987 before the trial Court as R.W.1 and filed verified copies of 10(1) accounts and No. 2 adangal, and got them marked as Ex. B-1 and B-2. The respondent-decree holder who got himself examined as P.W.1, deposed before the Court mat the defendant is a wealthy man and he is also doing business. Besides that, he has also deposed that Act 45 of 1987 has no application.
2. The lower Court on a consideration of the submissions held that the burdent lay on the judgment debtor to prove that he is a small farmer and held that he failed to establish that he is a small farmer except marking Ex. B-1 and B-2 and ordered the judgment debtor to deposit monies covered by the decree by 13-11-1995 or face the consequences in default Against that order which is dated 27-10-1995, the present C.R.P. has been filed.
3. Sri Gangaiah Naidu, counsel representing petitioner-judgment debtor contended that the benefits of Act 45 of 1987 have to be given to a party, who, initially, succeeds in showing that he is a small farmer and that the petitioner is entitled to the benefits. Though the petitioner has filed Exs. B-1 and B-2 i.e. 10(1) accounts and No. 2 adangal, the lower Court rejected the same and held that the petitioner failed to prove that he is a small farmer. It is therefore contended that when initially the burden lay on the petitioner and the same was discharged, the Court below ought to have accepted such a contention and dismissed the Execution Petition.
4. Sri P. Govind Reddy, counsel appearing on behalf of the respondent-decree holder, on the contrary, submits that the benefits of Act 45 of 1987 will not enure to the benefit of the petitioner as the transaction is saved by Clause 8 of Section 3(i) of Act 7 of 1977. Sri Govind Reddy further states that the respondent has deposed before the trial Court to that effect and therefore the lower Court having satisfied itself that the judgment debtor was not entitled to seek the benefit under the provisions of Act 45 of 1987 has rightly rejected the contention.
5. I have heard both the counsel at length and perused the order of the lower Court. It is no doubt true, the benefits of Act 45 of 1987 enure to the party, if it initially succeeds in proving before the court that he/she is a small farmer. I am fully aware that this Court, on two occasions, had examined the provisions of this Act and held that the burden to get the benefit under Act 45 of 1987 initially lay on the person who claimed the benefit and the same is rebuttable.
6. In this case, admittedly, the respondent-decree holder except stating mat the judgment debtor is not a small farmer and has sufficient means to discharge his application, has not placed any other documents before the Court below to subvert the claim of the petitioner. A belated plea at this stage is taken by the counsel for the respondent-decree holder that the subject matter of suit falls within the exempted Clause (viii) of Section 3(i) of the Act 7 of 1977 and therefore the lower Court ought to have seen to it and given a finding on the question as to whether the benefit of Act 45 of 1987 enures to the judgment debtor. I do not think this submission could be examined at this stage. The respondent-plaintiff has even failed to aver the nature of transaction in the plaint presented before the Court seeking a decree. The respondent-plaintiff had an occasion to bring forth this aspect before the trial Court when a counter was filed by the petitioner-judgment-debtor in the execution proceedings where he had categorically taken the plea that he is entitled for the relief under Act 45 of 1987 by presenting two documents Ex. B-l and Ex. B-2. The respondent-plaintiff had an occasion to file a rejoinder to the counter indicating in black and white that the provisions of Act 45 of 1987 are not applicable. Having not done so, I am afraid, it is not open to the respondent-plaintiff to take that plea in the C.R.P. filed Under Section 115 of C.P.C. The scope of revision Under Section 115 is very much limited and interference of this Court is called only when the order passed by the lower Court, if allowed to stand, would cause irreparable prejudice or injustice to the other side. Having had the advantage of stating these aspects before the trial Court through the plaint and also in the execution proceedings, the respondent has not done so. Therefore, such a plea is not permissible to be taken in this C.R.P. This submission has to be based on factual aspects. Since the respondent/Decree holder failed in this direction, the new stand taken is not tenable.
7. In this view of the matter what has to be seen in this case is whether the order of the lower Court rejecting the plea of the judgment debtor is proper in the set of circumstances, in other words, to say that the petitioner is not entitled to the relief under Act 45 of 1987. The petitioner placed two documents before the Court below i.e. Ex. B-1 and Ex. B-2 i.e. 10(1) accounts and No. 2 adangai which are sufficient to show that the petitioner-judgment debtor is a small farmer. As discussed by me, the initial burden though lay on the petitioner, I am inclined to say that the petitioner has satisfied the Court below, initially that he is a small farmer. The burden therefore shifted on to the respondent-decree holder to disprove the said claim. The respondent-decree-holder having foiled to disprove the said claim of the petitioner before the lower Court, the lower Court in all fairness, ought to have accepted .the plea of the petitioner and dismissed the execution proceedings. However, the Lower Court erroneously rejected the plea of the J.Dr. on the ground that the burden lies on him.
8. In this view of the matter, the order passed by the executing Court in O.E.P.No. 153 of 1987 in O.S.No. 138 of 1986 on 27-10-1995 cannot be sustained and it is accordingly set aside. Consequently, the Civil Revision Petition is allowed. No costs.