GANESH LAL Vs. MAGAN RAJ

JUDGEMENT

(1.) BY this appeal under s. 10 of the Rajasthan High Court Ordinance, 1949, the appellant, who is judgment-debtor, questions the correctness of the judgment dated April 10, S975, passed by the learned single Judge of this Court, by which he dismissed the appeal filed by him.

(2.) FACTS leading to this appeal may succinctly be stated: The decree-holder-respondent obtained a decree against the judgment-debtor-appellant on January 28. 1963 for Rs. 11,812/- and odd. That decree was confirmed in appeal by this Court. The decree-holder-respondent levied execution for the realisation of the amount and applied for attachment of the houses of the judgment-debtor. He filed an objection that as he is an agriculturist, the attached houses are not liable to attachment and sale under s. 60 (l) (c), C. P. C. The objection was dismissed by the executing court by its order dated October 21, 1967 holding that he (judgment-debtor-appellant) is not an agriculturist.

(3.) NOW, the next important section is sec. 8 which deals with submission of claims by creditors. We may profitably read s. 8 of the Act, which is as under:- "8. Submission of claims by creditors:- (1) On or before the date fixed for the hearing of creditors under sec. 7, which shall not be earlier then two months from the date of service of notice or of the issue of proclamation under Order V, Rule 20 of the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908) every creditors shall submit a statement of his claim signed and verified in the manner prescribed by Order VI, r. 15 of the First Schedule to the said Code. Such statement shall be submitted in person, by agent by pleader or by registered post and every claim not so submitted shall be deemed for all purposes and occasions to have been discharged as against such debtor or debtors; Provided that, if the Debt Relief Court is satisfied that for good and sufficient cause any creditor was unable to submit his claim, it may extend the time on such conditions as to costs as it may think fit and may revive the claim. (2) On the date on which the case is fixed for hearing, every creditor shall produce the documents in his possession or control on which he bases his claim. He shall also furnish a full and true statement of accounts of all previous transactions between him and his debtor leading to the claim and his account books or copies thereof, if any, in his possession or control. If such document and statements are not produced at such hearing or at any adjourned hearing fixed for the purpose by the Debt Relief Court, the Court may declare any such claim to be discharged for all purposes and all occasions against such debtor or debtors; Provided that if the Debt Relief Court is satisfied that any creditor is satisfied that any creditor was, for good and sufficient cause, unable to produce such documents, it may on such conditions as to cost as it may think fit extend the date for the purpose and may revive the claim. " Under s. 8 (1) of the Act, it has been made incumbent on the creditors to file their statement of claim, which is to be signed and verified in accordance with O. VI, r. 15, C. P. C. on or before the date, which is mentioned for the hearing of the creditors under s. 7 of the Act and that is not to be earlier than two months either from the dates of the service or of the issuance of proclamation under O. V. r. 20, C. P. C. If the claim is not submitted, then, it is deemed to have been discharged for all purposes. Under sub-s. (2) of s. 8 every creditor is further required to produce the documents in his possession or control, on which he bases his claim and also to furnish a full and true statement of the accounts of the previous dealings of the transaction between him and the debtors and also the account books and copies thereof which are in his possession or control on the date when the case is fixed for hearing. The penal consequences of not doing this have been provided in s. 8 (2) of the Act and that is that the Debt Relief Court may declare the claim of such creditor to be discharged for all purposes. It is, thus, clear that if a statement of claim is not filed after the service of notice or after issuance of the proclamation within the time provided therein, then, the claim of such creditor is considered to be discharged against the debtor for all purposes and occasions. In the case on hand, individual notice was neither issued nor served on the decree holder obviously for the reason that Himmat Mal, who has filed the application under r. 5 (2) of the Act, did not show his name as one of the creditors of the judgment-debtor, Even the judgment-debtor, throughout the proceedings of the application under s. 6 of the Act did not disclose the name of the decree-holder as one of his creditors. It may be mentioned that the amount, which the judgment debtor owed to the decree-holder was the decretal debt. It is correct that the decree-holder-respondent had appeared, but it does not mean that his appearance was in pursuance of any notice under s. 8 (1) of the Act as to make it necessary for his to have filed claim within the time provided under s. 8 (1) of the Act and further that for his failure or omission to do so would attract the penal consequence that his claim should be deemed to be discharged.