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2006 DIGILAW 1688 (RAJ)

KRISHNA LAL v. RAMESH CHANDRA

2006-05-16

DINESH MAHESHWARI

body2006
Judgment ( 1 ) THIS writ petition has been submitted against the order dated 21. 10. 2005 (Annex. 4) passed by the District judge, Sriganganagar in Execution Case No. 20/2005 rejecting the prayer of petitioner-judgment debtor for staying the proceedings in execution because of pendency of the proceedings under the Rajasthan Relief of Agricultural indebtedness Act, 1957 (the Act/the Act of 1957 hereinafter ). ( 2 ) BRIEFLY put, the facts relevant are that the respondent No. 1 Ramesh Chandra Gera filed a civil suit (No. 49/2003) against M/s Chandel Traders through the petitioner Krishna Lal for recovery of an amount of Rs. 69,946/-with the submissions that the defendant purchased goods on credit in the year 1999-2000 worth Rs. 1,07,189/- and made on account payment of Rs. 45,000/-; that though there were no further purchases in the year 2000-2001 and 2001-2002, but two cheques of Rs. 15,000/- each were given by the defendant and both of them were dishonoured by the Bank and the plaintiff had adopted proceedings under Section 138 of the Negotiable Instruments Act in relation to one such cheque. The plaintiff claimed that principal amount of rs. 47,189/- after adjustment of one disputed cheque amount remained due; and that the market rate of interest was 18% per annum and he was entitled to recover Rs. 22,657/- towards interest. ( 3 ) IT appears that the defendant-petitioner in his written statement, inter alia, pointed out that he had closed down his business in the year 2001 as his various dues in the agriculturists became bad debts; and that between the plaintiff and the defendant accounts were settled for rs. 30,000/- and two cheques for Rs. 15,000/- each were given but could not be got encashed. It was also averred that after closure of his business, the defendant was earning his livelihood by agriculture and, therefore, the plaintiff was not entitled to maintain civil suit for recovery of the said amount. ( 4 ) THE learned trial court framed six issues for determination of the questions involved in the suit and issue no. 5 was framed on the plea of the defendant that his principal source of livelihood was agriculture work and, therefore, the suit was not maintainable before the civil court. ( 4 ) THE learned trial court framed six issues for determination of the questions involved in the suit and issue no. 5 was framed on the plea of the defendant that his principal source of livelihood was agriculture work and, therefore, the suit was not maintainable before the civil court. The learned trial court, after appreciation of evidence produced on record, decided all the material issues of facts in favour of the plaintiff and found that the plaintiff was entitled to recover Rs. 47,289/-principal and 18% per annum interest from the defendant. ( 5 ) ON the mixed question of law and facts in issue no. 5, the learned trial court found that there was no evidence on record by which it could be held proved that the defendant was earning its livelihood from agriculture. It was also contended on behalf of the defendant-petitioner that he being an agriculturist, only an application under the provisions of the act of 1957 could have been made and the plaintiff was not entitled to maintain a civil suit. Such objection was rejected by the learned trial court with the observations that the dues in question were not of debt within the meaning of the Act of 1957 but were towards the amount due on account of goods purchased on credit. It was further observed that even if presently the principal source of livelihood of defendant was agriculture, it could not be held that civil suit was not competent. Issue No. 5 was accordingly decided against the defendant-petitioner and the suit was decreed on 16. 09. 2004 (Annex. 1 ). ( 6 ) THE petitioner thereafter submitted an application under Section 6 of the Act of 1957 before the Debt Relief court, Sriganganagar in which notices were issued on 30. 09. 2005. On the other hand, the plaintiff levied execution of the decree passed in his favour in the aforesaid Civil Suit no. 49/2003. In these execution proceedings, the petitioner moved an application (Annex. 3) with the submissions that he had already moved an application under Section 6 of the Act before the competent court and, therefore, further proceedings in execution of the decree be stayed. ( 7 ) THE learned Executing Court, by the impugned order dated 21. 10. 2005 (Annex. 49/2003. In these execution proceedings, the petitioner moved an application (Annex. 3) with the submissions that he had already moved an application under Section 6 of the Act before the competent court and, therefore, further proceedings in execution of the decree be stayed. ( 7 ) THE learned Executing Court, by the impugned order dated 21. 10. 2005 (Annex. 4) has rejected such application of the petitioner with the observations that specifically an issue was framed in the suit about the defendant being dependent on agriculture and the civil suit being not competent; and the said issue was decided against the defendant-judgment debtor and, therefore, even if other proceedings were pending, the proceedings in execution were not liable to be stayed. ( 8 ) ASSAILING the order dated 21. 10. 2005, learned counsel Mr. R. K. Thanvi appearing for the petitioner has strenuously contended that the petitioner is clearly an agriculturist and has already moved an application before the debt Relief Court and the said court having been prima facie satisfied about competence of the application has registered the case and issued notices and as a necessary consequence, the proceedings in execution are required to be stayed by virtue of Sections 5 and 6 of the Act of 1957. ( 9 ) LEARNED counsel submitted that once the application to the debt Relief Court has been registered, mere finding by the civil court in the suit in issue No. 5 would be of no relevance or consequence nor would operate over and above the operation of Sections 5 and 6 of the Act. Learned counsel also submitted that the finding on issue No. 5 by the civil court is not a finding by superior court and even if it was made while deciding the civil suit, the decree itself ought to be considered as a debt within the meaning of the Act of 1957 and, therefore, the proceedings in execution ought to have been stayed. ( 10 ) HAVING heard learned counsel for the petitioner and having perused the material placed on record and having examined the law applicable to the case, this Court is of opinion that the writ petition remains bereft of substance and deserves to be dismissed. ( 10 ) HAVING heard learned counsel for the petitioner and having perused the material placed on record and having examined the law applicable to the case, this Court is of opinion that the writ petition remains bereft of substance and deserves to be dismissed. ( 11 ) IT remains unquestionable that in the civil suit the defendant consciously joined the issue that he was dependent on agriculture and, therefore, civil suit was not competent and it was also suggested before the trial court that the creditor ought to have adopted proceedings under the Act of 1957. ( 12 ) THE learned trial court in the first place observed that from the evidence available on record, it cannot be held that the defendant and his family were wholly dependent on the income earned from agriculture. The learned trial court further observed that the objection that the proceedings ought to have adopted only before the Debt Relief Court was not justified and the dues in question relating to the value of goods purchased by the defendant for the purpose of his business do not answer to the description of debt within the meaning of the act of 1957 and, therefore, even if the defendants present source of income was agriculture, it cannot be said that the suit for recovery of money was not maintainable. With the said judgment and decree dated 16. 09. 2004 having become final, the findings on issue No. 5 also stand conclusive and binding on the petitioner. The submissions that such findings do not carry any relevance are not correct inasmuch as the said findings have been returned by a competent civil court on a matter that was directly in issue before that court. In the face of such findings on issue No. 5, even if thereafter the petitioner has moved an application under the Act of 1957 and it has been registered, the same is of no consequence. In the face of such findings on issue No. 5, even if thereafter the petitioner has moved an application under the Act of 1957 and it has been registered, the same is of no consequence. ( 13 ) THE provisions of the Act of 1957 are not meant to be used by a debtor to avoid proceedings in execution of a decree passed by the competent civil court particularly when the decree has been passed after holding that the debtor is not an agriculturist within the meaning of the Act of 1957 and that it was not required for the creditor to have moved the application under the Act of 1957 for recovery of subject dues. The submissions that the decree in question deserves to be treated as debt within the meaning of the Act of 1957 are not apposite to the facts of this case, where the findings that the petitioner is not an agriculturist and is not a debtor under the act of 1957 stand concluded. ( 14 ) SECTION 5 of the Act of 1957 deals with abatement or stay of the proceedings in a suit or insolvency petition and provides that whenever a suit or insolvency petition against a debtor are brought or made and are pending in the competent court and when such debtor or the suitor applies to the court then the court shall abate the suit or petition if it be satisfied on affidavit or otherwise that an application to the Debt Relief court under 6 or 6a has been made, admitted and is pending; or it could stay the proceedings in said suit or application on being satisfied that the defendant is a debtor within the meaning of the Act. Squarely contrary to what has been contemplated by the Act of 1957, in the present case the debtor-petitioner joined the issue before the civil court and it was held that he was not an agriculturist within the meaning of the Act of 1957 nor the dues were of debt within the meaning of the Act of 1957. Admittedly, the proceedings in the civil suit were not prayed to be stayed. It appears that merely in a late attempt to somehow stall the execution of decree, the petitioner has chosen to adopt the course of proceedings under the Act of 1957. Admittedly, the proceedings in the civil suit were not prayed to be stayed. It appears that merely in a late attempt to somehow stall the execution of decree, the petitioner has chosen to adopt the course of proceedings under the Act of 1957. ( 15 ) HAVING regard to all the facts and circumstances of the case, the learned Executing Court cannot be said to have erred in rejecting the application submitted by the petitioner. In any case, the impugned order does not suffer from any error apparent on the face of the record nor results in manifest failure of justice. No ground for interference under article 227 of the Constitution of India is made out. The petition fails and is, therefore, dismissed summarily.