RAM RUP MAHTON Vs. KIRPA NARAIN MAHTON

JUDGEMENT

(1.) This is an application by the plaintiff-decree-holder for setting aside the order dated the 1st Sept., 1977 passed by the Execution Munsif, Patna, in Miscellaneous Case No. 57 of 1977, wherein she held that the opposite party-judgment-debtor is a resident of the State of Bihar and is a small farmer within the definition of the Bihar Debt Relief Act, 1976 (hereinafter called 'the said Act'), who owns land measuring not more than two acres of irrigated land and can be called a "scheduled debtor" and that being a 'scheduled debtor' he is entitled to discharge of his debts under Section 3 of the said Act. She also held that the debts are not recoverable. Accordingly, she allowed the application.

(2.) Learned counsel for the petitioner has submitted that the hand-note (Ext. A) shows that opposite party Kirpa Narain Mahto borrowed a sum of Rs. 2,200/- and there was a recital therein to the effect that he carried on agriculture and trade and that the loan was needed for agricultural purpose and also for the development of trade. He has also referred to para 2 of his petition at page 11 where it has been pointed out that the defendant-opposite party accepted in the written statement that the plaintiff was a well-known money lender and that the defendant, who was in need of money for starting a business, went to him and requested him for a loan of Rs. 2,200/-. On the basis of these two documents the learned counsel for the petitioner has submitted that the opposite party was carrying on business.

(3.) I have perused the order dated 1-9-1977 of the learned Execution Munsif and I rind that after discussing the evidence relating to it she has come to a finding that the opposite party Kirpa Narain Mahto was not primarily a cultivator. She has also not accepted the evidence on behalf of the petitioner that the opposite party was carrying on any business and that even if the intention was to carry or, business, unless the opposite party carried on business at the time when execution petition was pending, it cannot be said that he had other source of income.