Judgment Hari Lal Agrawal, J. 1. The decree-holder, aggrieved by the order of the executing court holding that his execution case abated under sections 3 (a)and 3 (c) of the Bihar Debt Relief Act, has failed the present application. The facts : the petitioner obtained a money decree against one Mukhan Singh, his brother Rama Singh and his son Jamuna Singh from the 1st Court of Munsif, sasaram, for more than Rs.1076 on 23.11.1974. On 11.7.1974,he put the decree into execution against the judgment-debtors and proceeded against their landed properties. Mukhan Singh, however, died during the pendency of the execution case and was substituted by his widow Mst Kaushalya Devi and his other two sons. On 25.2.1977 a petition was filed on behalf of the judgment-debtors that inasmuch as they were in possession of less than 2 acres of unirrigated lands, they were scheduled debtors within the meaning of clause (b) of section 2 of the Bihar Debt Relief Act and, therefore, the execution proceeding should abate under clause (c) of section 3 of the Act. 2. Before proceeding to examine the case on its merit. It may refer to some of the relevant provisions of the Act. This Act has bean promulgated, as would appear from its very preamble, for providing relief from indebtedness to the small and marginal farmers etc. Sec.2 (b) defines scheduled debtor as "a person who is a small farmer, or a marginal farmer, or a rural artisan, or an agricultural labourer, who is ordinarily resident in the State of Bihar". 3. In this case we are concerned with a small farmer, which has been defined in clause (c) to mean "a farmer who owns land measuring not more than one acre of irrigated land or two acres of unirrigated land. "the area has been just doubled under the proviso if the small farmer belonged to any of the scheduled tribes. The Judgment-debtors in this case, however, do not fall under scheduled tribes. 4. Section 3 of the Bihar Relief Act provides that for the discharge of all debts of scheduled-debton including the amount of interest, which ceases to be recoverable from him or from any movable or immovable property belonging to him. The Judgment-debtors in this case, however, do not fall under scheduled tribes. 4. Section 3 of the Bihar Relief Act provides that for the discharge of all debts of scheduled-debton including the amount of interest, which ceases to be recoverable from him or from any movable or immovable property belonging to him. Clause (c) of sub section (1) of section 3 further provides that all suits and proceedings (including appeals, revision, proceeding 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. It is under this provision that the judgment-debtors claimed abatement of the execution proceeding and have succeeded. Clause (c) is followed by two provisos, the first proviso may be of some relevance to the present case, which reads as follows : "provided that where a suit or proceeding is pending jointly against a scheduled-debtor and any other person it shall not abate in so far as the claim against such other person is concerned". 5. Now, undisputedly the family of the judgment-debtors which was an undivided Hindu family owned and possessed more than 12 acres of land. When the decree was put into execution, they were joint. According to the khatiyan, Mukhan Singh had 8 acres and his brother Rama Singh 4 acres of land. According to the judgment debtors, they had a third brother, namely, ramta Singh. No Khatian seems to have been prepared in his name, but even assuming for the sake of the argument that he might have a share as a co-parcener in the joint family, then the share of all the three brothers, namely, mukhan Singh, Rama Singh and Ramta Singh would be 4 acres each. It has also been found that the lands are irrigated. From the evidence adduced on behalf of the decree-holder, it appears that the land in question was irrigated from high level Sone canal. In this way, according to the scheme of the Act, the provisions of section 3 of the Act would apply only, if the judgment-debtors owned land not measuring less than one acre. 6. From the evidence adduced on behalf of the decree-holder, it appears that the land in question was irrigated from high level Sone canal. In this way, according to the scheme of the Act, the provisions of section 3 of the Act would apply only, if the judgment-debtors owned land not measuring less than one acre. 6. It further appears that Partition Suit No.221 of 1976 was filed by the brothers of the family of the judgment-debtors and in that a compromise decree was passed according to which Kaushalya Devi, widow of Mukhan Singh, was allotted only 40 decimals of land, i. e. , less than one acre. 7. Learned Munsif on the basis of the certified copy of the final decree (Ext. B) has come to the conclusion that the judgment-debtors were all scheduled debtors. He also referred to the certified copy of the order-sheet in another execution case No.62 of 1976 of his own court in which the judgment-debtors were declared scheduled debtors and on these documents he allowed the application of the judgment-debtors and passed an order in their favour as already stated earlier. 8. Mr. Janeshwar Singh appearing in support of this application contended that the liability of the judgment-debtors to answer the decree which was passed much before the partition suit will be taken to the extent of the land by the judgment-debtors before the partition and any partition effected after the decree or for that matter during the pendency of the execution proceeding would not be of any avail to the judgment-debtors. In this connection, certain provisions of the Code of Civil Procedure may be noticed. 9. Section 50 of the Code of Civil Procedure prescribes that where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the court which passed it to execute the same against the legal representatives of the deceased who shall, however, be liable only to the extent of the property of the deceased which has come to his hands. Then according to section 53, which is in the nature of an explanation to section 50, property in the hands of a son of other descendant which is liable under Hindu law for the payment of a debt of a deceased ancestor in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as legal representative. In my view, therefore, on the facts and in the circumstances mentioned above, as the partition suit was instituted after the execution case has proceeded, the property in the hands of the survivors was liable to satisfy the decree holders dues. Once this view is taken, it becomes apparent that the extent of the property of the judgment-debtors was more than one acre. 10. Apait from the above consideration the matter can also be examined from an other angle, and that is that according to the scheme of section-3 (1) (c), the ownership of a marginal farmer, must be determined with respect to the date when the protection becomes available for the first time to a debtor and he should not be permitted to diminish his holding by subsequent acts during the continuation of the proceeding and then to raise the question of abatement and ask the court to decide the question in his favour on those subsequent events. It is not disputed that on the date the provisions of this act were sought to be applied to the execution proceedings, the judgment-debtors could not be held to be a scheduled debtor as on that day the extent of the land possessed and held by them was many times more than the limit prescribed in the Act for claiming advantage and relief. 11. Learned lawyer appearing for the respondents, however, also contended that in view of the fact that the judgment-debtors were declared to be scheduled debtors by the court below in another case. They must be held to be so in this case as well. It is difficult to accept this contention as the present petitioners were not parties to that proceeding and the order passed in the other execution case cannot be held to be a judgment in rembinding on the other decree-holders. Apart from this consideration, the facts and circumstances in which the said order was passed are also not known. 12. It is difficult to accept this contention as the present petitioners were not parties to that proceeding and the order passed in the other execution case cannot be held to be a judgment in rembinding on the other decree-holders. Apart from this consideration, the facts and circumstances in which the said order was passed are also not known. 12. For the reasons discussed above, I would allow this application and set aside the order in question. The petitioner will also be entitled to their cost. Application allowed.