Orissa High Court
Janardan Misra vs Sidha Bal on 13 May, 1986
Equivalent citations: 1986(I)OLR677
JUDGMENT K.P. Mohapatra, J.
1.This revision is from the order passed by the learned Munsif, Puri, directing abatement of the execution proceeding under Section 3 (1)(c) of the Orissa Debt Relief Act (hereinafter referred to as the 'Act').
2. The facts may be narrated in brief. The petitioner instituted a money Suit (O. S. No 309 of 1971-III) based on a promissory note against the opposite party in the Court of the Munsif, Puri, and on 21-3-1972 obtained an ex parte decree for the sum of Rs. 829/- and cost of Rs. 158.13. He put the decree into execution in Execution Case No. 139 of 1978. The opposite party being the judgment-debtor entered appearance and filed a petition under Section 3(1)(c) of the Act. He stated therein that he was a scheduled debtor, being a small farmer owing less than one standard acre of land and his annual total income did not exceed Rs. 2,400/-. The petitioner in his counter denied the above allegations and averred that the opposite party was not a scheduled debtor and his monthly income from labour was Rs. 500/-. He had also business in vegetables and coconut which yielded additional income. He took a false plea in order to avoid payment of the decretal dues.
3. The learned Munsif after hearing both parties held that the opposite party was a scheduled debtor and so the execution proceeding abated under Section 3( 1)(c) of the Act.
4. Mr. N. C. Pati, learned counsel appearing for the petitioner, urged that the petitioner did not carry on business of money-lending. He had advanced a friendly loan to the opposite party. Therefore, the provisions of the Act are not applicable to the facts of this case. Accordingly the order of abatement of the execution proceeding cannot be sustained in law. This point is one of law and has been raised for the first time in this revision which deserves to be critically examined.
5. Section 3(1)(c)of the Act is quoted below for easy reference.
"3. Discharge of debt by scheduled debtors and consequence of such discharge. (I) Not with standing anything contained in any other law for the time being in force or in any Contract or other instrument having force of law by virtue of any such law, and save as otherwise expressly provided by Section 5, every debt incurred by a scheduled debtor before the commencement of this Act including the amount of interest, If any, payable on such debt shall be deemed to have been wholly discharged, and XX XX XX
c) all suits and proceedings (including appeals, revisions, proceedings in execution and attachment) pending on the date of commencement of this Act for the recovery of any such debt or interest due thereon against a scheduled debtor shall abate :
XX XX XX In the aforesaid provision, there is reference to 'debt' incurred by scheduled debtors before the commencement of the Act. The Act came into force with effect from 13. 3. 1981. In this case/the debt was incurred by the opposite party prior to the coming into force of the Act. 'Debt has been defined in Section 2(e) as follows :
"debt" means all liabilities to money-lender in cash or kind secured or unsecured, payable under a decree or order of Civil Court or otherwise including any transaction which is in substance a debt, and subsisting on the date of the commencement of this Act whether due or not due."
In the above definition of 'debt', there is reference to the expression 'money-lender' which again has been defined in Section 2(f) as under :
" 'money-lender' means a money-lender as defined in the Orissa Money-Lenders Act, 3 of 1939."
In the Orissa Money-Lenders Act 'money-lender' has been defined in Section 2 (4) (j) as follows :
" 'money-lender' means a person whose business is that of advancing loans but does not include a bank or a co-operative' society and the expression 'money-lending' shall be construed accordingly".
If the aforesaid provisions are read and considered comprehensively, it will be crystal clear that Section 3(1)(c)of the Act will be applicable to the case of a debt incurred by a scheduled debtor prior to the coming into force of the Act from a person who carries on business of money-lending in regular course and is, therefore, not applicable to a case in which a person who has advanced a friendly or accommodation loan on an isolated occasion and who does not carry on the business of money-lending. Learned counsel appearing for both parties did not dispute the above conclusion.
6. Now, turning to the facts of the case, there is nothing op record to show that the petitioner carried on the business of money-lending in course of which he had advanced loan to the opposite party on execution of a promissory note. The opposite party did "not allege in his Petition nor did he make any statement on oath to the effect that the petitioner carried on the business of money-lending. According to Section 8 of the Orissa Money-Lenders Act, a person carrying on the business of money-lending shall not be entitled to institute a suit for the recovery of a loan advanced by him after the date on which the section came into force unless he was registered as a money-lender at the time when the loan was advanced. Despite this provision, an ex Parte decree was passed in favour of the petitioner which is suggestive of the fact that he was not a regular money-lender, there was no necessity for him to obtain a registration certificate and the suit instituted by him was maintainable.' Had he been a regular money-lender, he would have been non-suited in the absence of having obtained a registration certificate under the provisions of the Orissa Money-Lenders Act. This is an additional fact which supports the petitioner's case to the effect that he was not a regular money-lender and had advanced a friendly or accommodation loan to the opposite party. This being the. position, the provisions of the Act are inapplicable to the facts of the case and so there was no justification . for the learned Munsif according to law to pass the impugned order of abatement.
7. For the aforesaid reasons, the civil revision is allowed with costs and the impugned order is vacated. The execution proceeding shall continue from the stage it was left. Advocate's fee at Rs. 75/-.