PATEL PARSHOTTAM AMBAVI Vs. PATEL HANSRAJ VALJI BHALODIA

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The appellant is the judgment-debtor and the respondent is the decree-holder. Decree-holder filed Civil Suit No. 34 of 1968 for recovering from the judgment-debtor a sum of Rs. 9 500 which were advanced in 1966. He also prayed for interest and costs. On 30th April 1969 the trial Court passed in favour of the decree-holder decree for the entire amount with interest and costs. In order to recover the decretal debt the decree-holder filed Execution Application No. 48 of 1969. In order to recover the decretal debt the decree-holder attached the judgment-debtors 1/3rd share in agricultural lands which in all admeasured 32 acres 14 gunthas. To this attachment the judgment-debtor raised the objection. He contended that the lands which were attached did not belong to him. He therelore prayed for raising the attachment. This objection was rejected by the Executing Court. Thereafter the judgment-debtors wife and children raised a similar objection and contended that the lands under attachment belong to them and not to the judgment-debtor. The Executing Court rejected their application. Thereupon they filed a substantive suit against the decree-holder under Order 21 Rule 63 of the Code of Civil Procedure. The learned trial Judge dismissed the suit. They challenged that decree in an appeal before the District Court. That appeal was also dismissed. The appellate decree was challenged in the second appeal which was also dismissed. Thereafter the execution of the decree proceeded further. Proclamation of sale was issued by the Executing Court. Before the lands under attachment could be sold Gujarat Legislature enacted The Gujarat Rural Debtors Relief Act 1976 which came into force on 15 August 1976. On 6th October 1976 the judgment-debtor made an application to the authority specified in sec. 6 of the said Act for the settlement of his decretal debt. That application is still pending. After having made that application the judgment-debtor made an application to the Executing Court for staying the execution proceedings until the application made by him under sec. 6 of the said Act was finally decided. In this application for stay which the judgment-debtor made he contended that he is a debtor within the meaning of the said Act and that the decretal debt due from him has abated. it was contended before the Executing Court that it had no jurisdiction to decide this contention. The Executing Court held that it had the jurisdiction to decide the contention raised by the judgment-debtor. On merits following the decision recorded in the substantive suit filed by the judgment-debtors wife and children the Executing Court held that the judgment-debtor is not a debtor within the meaning of the said Act. The application for stay was therefore dismissed. That decision was challenged in an appeal before the District Court. The learned appellate Judge confirmed the view taken by the Executing Court and dismissed the appeal.

(2.) It is that appellate order which is challenged by the judgmentdebtor in this appeal.

(3.) Since the question which has been raised in this appeal is of wide public importance the appeal has been referred to the Division Bench by the learned Single Judge.