NAGRAJ Vs. ANJI REDDY

JUDGEMENT

(1.) The petitioner is the decree-holder. The respondent judgment- debtor executed a promissory note in favour of K. Seshamma. They were endorsed in favour of the petitioner for collection. On the basis thereof the petitioner filed O.S. No. 2564/74 in the court of the City Civil Court at Madras. The suit was decreed exparte on 9-4-1975. For execution thereof the petitioner obtained under Sec. 40 of the Civil Procedure Code, 1908 (for short the Code) transmission to the court of the District Munsif, Addanki. The petitioner sought for, execution of sale of the property and also arrest of the respondent under Order 21 Rule 37 the execution the respondent raised, the plea that he is a small farmer within the meaning of Sec. 3 (t) of the A.P. Agricultural Indebtedness Relief Act, VII of 1977 (for short the Act). The court below found that the respondent is a small farmer and as a result of operation of Sec. 4 of the Act the debt stands extinguished. Assailing the correctness thereof the revision has been file d.

(2.) Sri Subrahroanya Narsu, learned counsel for the petitioner has contended that the Act has no application to the territory of Madras and therefore the respondent is not entitled to take the benefit of the provisions of the Act. In support thereof he relied on Inderchand Kajrlkai vs. Bansropan Sahu, A.I.R. (1948) Patna 244 Basheer Ahmed vs. Padmanabha, A.I.R. (1953) Mysore 37 and Ramavtar vs. Pop Singh, A.I.R.'(1970)Orissa36.

(3.) Sri Seshaiah, learned counsel for the respondent on the other hand contends that the description of 'creditor' under Sec. 3 (h) of the Act is wider now to include any decree-holder creditor and the petitioner being the creditor, the respondent being the debtor is entitled to the benefits of the Act. The respondent's contention gives rise to the question whether the provisions of the Act would apply to the execution of a decree obtained another court. Sec. 40 of the Code postulates that where a decree is sent for execution in another court it shall be sent to such court and executed in such manner as may be prescribed by rules in force in that State. The rules have been provided under Order 21 of the Code. In execution thereon under Sec. 51 read with Order 21 Rule 37 the execution has been levied. Unless it is found that the judgement-debtor since the date of the decree has means and has been evading payment thereof, the decree by way of execution by detaining the judgment-debtor in civil prison cannot be ordered. In the execution it is now settled by a decision of this Court in G. Venkateswarulu vs. J. Bapalah, 1948 (1) A.P.L.J. 35 S.N 1984 ALT 49 N.R.C. that it is open to the judgment-debter to raise the plea of benefit of Sec. 4 of Act VII of 1977. It is true, as contended by Sri Subrahmanya Narsu, learned counsel, that the benefit of the provisions of the Act is not applicable to the judgment-debtor if the decree is executed in the State of Tamil Nadu since the Act has no application within the limits of the State of Tamilnadu. But once it is transmitted the question is whether the provisions of the Act can be availed of by the judgment-debtor. In this case admittedly the promissory note was executed in the State of Andhra Pradesh and it was endorsed to the petitioner for collection at Madras. As result the City Civil Court at Madras also had territorial and pecouniary jurisdiction to entertain the suit since part of the cause of action arose in the State of Tamilnadu. Since part of the cause of action arose in the State of Andhra Pradesh and part of cause of action arose in the State of Tamilnadu and when admittedly the respondent-judgment-debtcr is a resident of the State of Andhra Pradesh and part of the cause of action arose here when the suit is to be laid and when the decree is to be executed against the judgment-debtor he is entitled to take the benefits provided under the Act. The devise adopted by the premises of the promissory-note is to avoid the provisions of the Act. As a result endorsement was made for collection in favour of the petitioner and get the decree obtained in the Civil Court at Madras. But when in substance it is sought to be executed against the judgement-debtor in the State of Andhra Pradesh when the Legislature intends under the Act to give benefit to a small farmer of statutory declaration of the debt having been extinguished, in my view the provisions of the Act are to be made applicable to the decree in execution. Otherwise by mere devise a creditor can defeat the beneficial provision of the Act. Keeping the object of the Act in view I am of the view that though the decree under Sec.40 of the Code was transmitted for execution all the benefits under the Act shall apply and the judgment-debtor is entitled to make avail of the same.