RADHABAI GHUBBAJI Vs. KONDBA SHIORAM

JUDGEMENT

(1.) THE applicants were indebted to opponent No. 1 Kondba. They made an application before the Debt Relief Court and the Debt Relief Court after scaling down the debts on March 17, 1941, fixed their liability at Rs. 1,577 -8 -0 and ordered that the applicants should pay the aforesaid amount by annual instalments of Rs. 159 -12 -0, first instalment being payable on March 1,1942. The applicants paid instalments regularly upto March 1, 1946. Thereafter they failed to make payments and, therefore, opponent No. 1 Kondba applied to the Deputy Commissioner under Section 13(3) of the C.P. and Berar Relief of Indebtedness Act for requisite certificate. On July 1, 1953, the Deputy Commissioner made an order under Sub -section (5) of Section 13 that the order of the Debt Relief Court fixing instalments shall cease to have effect and the balance remaining due shall be recovered as if a decree. Opponent No. 1 then on the basis of this order took out execution seeking to recover the balance of Rs, 778 -12 -0 by sale of the applicants' field No. 105 situate in mauza Pujai, tahsil Wardha. After issuing notice to the applicants, sale proclamation was drawn up and the sale was fixed for April 4, 1957. On that day, however, the sale did not take place. Another proclamation was then issued for holding sale on June 28, 1957. On that day also sale did not take place and another proclamation was issued fixing the sale on October 8, 1957. The said field was sold in Court auction on October 8, 1957, and was purchased by opponent No. 2. On October 17, 1957, the applicants made two applications, one under Section 3 of the M.P. Temporary Postponement of Execution of Decrees Act, Act No. V of 1956, and by this application the applicants prayed that they being agriculturists under the provisions of Section 3 of Act No. V of 1956 proceedings in execution be stayed; in other words, the prayer of the applicants was that the sale be not confirmed; the other application was under Order XXI, Rule 90, of the Code of Civil Procedure for setting aside the sale on the ground of certain irregularities and illegalities mentioned in the application. The trial Court first heard the latter application. June 25, 1958, was fixed for recording evidence of the parties. On June 25, 1958, the applicants appeared but had not summoned any witnesses. They prayed that they may be granted time to summon witnesses. Their request was rejected. Ultimately the applicants' application under Order XXI, Rule 90, was dismissed on July 7, 1958. Thereafter, the trial Court took up the former application of the applicants, viz. application under Section 3 of Act V of 1956 and that application also was dismissed on July 7, 1958. The applicants then took an appeal against the order of the trial Court dismissing their application under Order XXI, Rule 90. It has been dismissed. The applicants, therefore, have preferred this revision application.

(2.) FIRST contention raised by Mr. Ranade, learned Counsel for the applicants, is that it was incumbent on the trial Court to stay execution, the applicants are agriculturists and Section 3, the provisions of which are mandatory, directs that execution of decrees against agriculturists should be stayed. This contention of the applicants has not been accepted, and, in my view, rightly. The said Section 3 runs:

(3.) EVEN assuming that the applicants are agriculturists it cannot be said that the execution proceedings taken against them are in respect of a decree passed 'by a civil Court. The execution is in respect of a certificate issued by the Deputy Commissioner under Sub -section (5) of Section 13 of the Belief of Indebtedness Act The section in terms says that the certificate is executable as if a decree. The use of the expression 'as if in Sub -section (3) connotes that the certificate is not a decree of a civil Court, and even though it is not a decree of a civil Court, the Legislature confers powers on the civil Courts to execute that certificate as if it is a decree. Section 3 of Act V of 1956, therefore, has no application to proceedings in execution in respect of a certificate issued by the Deputy Commissioner under Sub -section (5) of Section 13 of the Belief of Indebtedness Act. I find support in Dillisingh v. Thakur Teksingh [1946] Nag. 821 and Jagannath v. Gulabsingh [1949] Nag. 981.