ORDER
G. Yethirajulu, J.
1. This is a reference made by a learned single Judge with a request to reconsider the Judgment rendered by a Division Bench of this Court in Kasi Viswanatham v. Venkata Subba Rao 1984(2) ALT 173 (D.B.) by observing that it is going to have far reaching effect on all the suits for recovery of money, at whatever stage they are pending.
2. The learned Judge, during the course of hearing of the revision, encountered a question as to the burden on the party who claims benefit under the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (Act 7 of 1977) (for short ‘the Act’). One of the contentions raised before the learned Judge was that apart from proving or otherwise of the fact whether the respondent or his creditor was a small farmer or a rural artisan, the decree becomes a nullity, if an issue was not framed as to whether the debtor was a small farmer.
3. The learned counsel for the respondent relied on a Judgment of the Division Bench of this Court in Kasi Viswanatham’s case (1 supra). In the said judgment, the Division Bench observed as follows:
1. A decree obtained ex parte or otherwise against a ‘debtor’ within the meaning of the Act 7 of 1977, is not executable, unless in the suit the creditor-plaintiff has not only raised the plea and got an issue framed to the effect that the defendant is not a ‘debtor’ but also got adjudicated on adducing evidence that the defendant was not a debtor.
2. The debtor will not be barred by the principle of constructive res judicata, from raising the plea that the ex parte decree obtained against him is not executable inasmuch as the plea of ‘debtor’ was neither raised, much less adjudicated, on the ground that the debt stood discharged on the day when the Act came into being and any execution proceedings, if levied, will abate under Section 4(2) of the Act.
3. Same is the view even if the debtor appeared in the suit, as the creditor is obligated to establish that the defendant is not the debtor; it is then only Court gets jurisdiction, to proceed further.
4. Every debt, on the coming into force of the Act, stands ipso facto, discharged; so the Court inherently lacks jurisdiction to execute the decree, which is a nullity. in fact, the execution proceedings abate. It, however, gets jurisdiction if it is established that the judgment-debtor is not the debtor within the meaning of the Act.
5. When once the plea is raised and decided, that the defendant is not the ‘debtor’ within the meaning of the Act, the debtor cannot raise the objection once again in execution proceedings, even on the ground that he remained ex parte, as he would be barred by constructive res judicata”.
6. The general rule of constructive res judicata as envisaged under Section 11 (IV) of the Code of Civil Procedure, cannot override the special provisions of the Act under the maximum generalia specialibus non derogant.
7. In a suit filed before the advent of the Act, but the decree granted subsequent to the Act, execution petition shall not be entertained by the executing Court unless it is established by the creditor-plaintiff that not only the plea that the defendant was not a ‘debtor’ within the meaning of the Act, was raised but also was decided by the Court that the defendant was not the ‘debtor’. This will be so, whether the decree granted was ex parte or otherwise.
4. The learned single Judge is of the view that the proposition laid down in Kasi Viswanatham’s case (1 supra) does not appearto be in conformity with the law relating to framing of issues and the question of framing of issues either by the Court or at the instance of the parties would arise only when one party affirms a particular fact or law and the other party denies it under Order XIV, Rule 1 of the Code of Civil Procedure (for short ‘C.P.C.’). The learned Judge further observed that to expect the plaintiff in a suit for recovery of money, to get an issue framed even in the absence of a plea or where the defendant remains exparte, does not appear to be in conformity with the principles governing the law relating to framing of issues.
5. The learned counsel for the respondent submitted that even where the defendant remains ex parte, not to speak of a case where the defendant fails to take a plea as to the benefits under the Act 7 of 1977, the creditor is under an obligation to raise the plea, get an issue framed to the effect that the defendant is not a debtor and get an adjudication on the issue that the defendant is not a debtor and in the absence of the same, the decree becomes in-executable.
6. The learned counsel for the petitioner placed strong reliance on Kasturibai v. Bademia 1980 (2) ALT 386, in which a learned single Judge of this Court held as follows:
Before the burden under Section 13 is cast on the creditor to establish that the debtor is not entitled to the benefits of the Act, it should prima facie be established by a person claiming the benefit of the Act that he is a ‘debtor’ falling within the definition of Section 3(1) of the Act. It is only after the debtor establishes that he falls within the definition of a debtor, the burden shifts to the creditor that such a debtor is not entitled to claim the benefit of the Act one or other of the grounds mentioned in the Act.
7. In V. Kistaiah v. K. Ramappa 1990 (1)An.W.R. NOC 19, a learned single Judge of this Court held as follows:
The initial burden is cast on the debtor to prove that he is a small farmer. The defendant is in the exclusive knowledge of the properties owned by him. It cannot be said that his statement is sufficient to discharge his initial burden that he is a small farmer. When the defendant failed to adduce any evidence, it will cast any amount of doubt-about the bona fide plea set up by him. In such circumstances, it is the duty of the Court to scrutinize the evidence on record with great care and caution and find out whether the defendant is a small farmer within the meaning of A.P. Act 7 of 1977 and Act 45 of 1987.
8. In K.V. Rama Reddy v. M. Viswanatham , a learned single Judge of this Court, while considering the scope of Section 13 of the Act, held as follows:
The debtor should first enter into the witness box and produce prima facie proof that he is entitled to the benefits of Act 7 of 1977 i.e., the debtor falls within the definition of Section 30)-Thereafter, the onus shifts to the creditor, under Section 13, to establish that the debtor is not entitled to the benefits of the Act.
9. The learned Judge rendered the above Judgment after considering the decisions reported in Kasi Viswanatham and Kasturibai’s cases. The learned Judge further observed that the burden cast by Section 13 of the Act is reemphasized by the Division bench and there appears to be no inconsistency between the two decisions, namely Kasi Viswanatham v. Venkata Subba Rao and Kasturibai v. Bademia.
10. The judgment in Kasturibai’s case (2 supra) and other judgments were also considered by the Division Bench in Kasi Viswanatham’s case (1 supra). The learned single Judge herein felt that the principle laid down by the Division Bench in Kasi Viswanatham’s case is going to have far reaching effect on all the suits for recovery of money, therefore, it requires reconsideration by another Division Bench.
11. In the light of the circumstances under which the above reference was made, the following is the point for consideration by this Court:
In order to maintain a suit for recovery of money against an agriculturist, an artisan or an agricultural labourer, whether the plaintiff has to raise the plea regarding the maintainability of the suit, get an issue framed whether the defendant is not a debtor and adduce evidence to establish that the defendant is not a debtor entitled for the benefits of Act 7 of 1997?
12. The Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977, was mutatis mutandis, applied in Act 45 of 1987, except Section 4. The object of the Act is to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers in the State of Andhra Pradesh and for matters connected therewith.
13. Section 3 of the Act reads as follows:
3. Definitions:- In this Act, unless the context otherwise requires,-
(a) …..
(b) ….
(c) ….
(h) ‘creditor’ means a person from or in respect of whom the debtor has borrowed or incurred a debt and includes his heirs, legal representatives and assigns.
(i) ‘debt’ includes any liability owing to a creditor in cash or in kind, whether secured or unsecured, payable under a decree or order of a Civil Court or otherwise and subsisting at the commencement of this Act.
(j) ‘debtor’ means an agricultural labourer, a rural artisan or a small farmer, who has borrowed or incurred any debt before the commencement of this Act.
(t) ‘small farmer’ means a person whose principal means of livelihood is income derived from agricultural land and who holds and personally cultivates, or who cultivates as a tenant or share-cropper or mortgagee with possession, agricultural land which does not exceed in extent,-
(i) in the case of persons other than the members of the Scheduled Tribes, one hectare, if it is wet, or two hectares, if it is dry;
(ii) in the case of the members of the Scheduled Tribes, two hectares, if it is wet, or four hectares, if it is dry; but does not include any person whose annual household income, other than from agriculture exceeds one thousand and two hundred rupees in any two years within three years immediately preceding the commencement of this Act.
Section 4 of the Act reads:
4. Discharge of debts and relief to debtors:-
(1) Notwithstanding anything in the Andhra Pradesh (Andhra Area) Agriculturists Relief Act, 1938, the Andhra Pradesh (Telangana Area) Money Lenders Act, 1349 F., the Andhra Pradesh (Andhra Area) Pawn brokers Act, 1943, the Andhra Pradesh (Telangana Area) Agricultural Debtor’s Relief Act, 1956, the Andhra Pradesh (Scheduled Areas) Money Lenders Regulation, 1960, the Andhra Pradesh Indebted Agriculturists, Landless Labourers and Artisans (Temporary Relief) Act, 1976 or any other law for the time being in force or any contract or other instrument having the force of law and save as otherwise provided in this Act, with effect on and from the commencement of this Act, every debt, including interest, if any, owing to any creditor by an agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged.
(2) (a) No Civil Court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of the debt, including interest, if any, which is deemed to be discharged under Sub-section (1):
Provided that where any suit or other proceeding is instituted jointly against the debtor and any other person, nothing in this sub-section shall apply to the maintainability of such suit or proceeding in so far as it relates to such other persons.
(b) All suits and other proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of this Act against any debtor for the recovery of any such debt, including interest, if any, shall abate:
Provided that nothing in this clause shall apply to the sale, in respect of any such debt, of-
(i) any movable property held and concluded before the commencement of this Act;
(ii) any immovable property, confirmed before such commencement.
(c) Every debtor undergoing detention in a civil prison in execution of any decree for money passed against him by a Civil Court in respect of any such debt, including interest, if any, shall be released.
(3) (a) Every movable property pledged by a debtor whose debt is deemed to be discharged under Sub-section (1), shall stand released in favour of such debtor and the creditor shall be bound to deliver the same to the debtor forthwith.
(b) Every mortgage executed by such debtor in favour of the creditor shall stand redeemed and mortgaged property shall be released in favour of such debtor.
14. Under Section 4(1) of the Act, every debt, including interest, if any, owing to any creditor by an agricultural labourer, a rural artisan or a small farmer shall be deemed to be wholly discharged.
15. Section 4(2)(a) of the Act makes it clear that no Civil Court shall entertain any suit or other proceeding against the debtor for the recovery of any amount of the debt, including interest, if any, which is deemed to be discharged under Sub-section (1). Therefore, a creditor is precluded from bringing any suit against a small farmer, a rural artisan or an agricultural labourer under the normal circumstances unless sufficient material is placed to convince the Court that the borrower do not come within the definition of an agricultural labourer, a rural artisan or a small farmer. When once Section 4 declares that all debts stood discharged and no Civil Court shall entertain any suit for recovery of such debts, the plaintiff has to either plead that the defendant is not a small farmer or a rural artisan or an agricultural labourer, or that he is also a small farmer or a rural artisan or an agricultural labourer.
16. Section 13 of the Act relates to burden of proof, which reads as follows:
In any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any law for the time being in force, lie on the creditor.
17. Whenever the creditor presents a plaint he has to plead that the defendant is not entitled for the benefits of the Act. On such pleading only, the Civil Court would entertain the suit and issue summons to the defendant. If the defendant makes his appearance and takes a plea that he is entitled for the benefits of the Act 7 of 1977, an issue will be framed and the evidence will be adduced by both parties. If the plaintiff discharges his initial burden of establishing that the defendant is not entitled for the benefits of the Act 7 of 1977, the burden shifts to the defendant to establish that he is entitled for the benefits of the Act. In view of the Sections 4 and 13 of the Act, the initial burden is on the plaintiff to establish that the suit is maintainable against the defendant. The initial burden is not on the defendant to prove that he is a small farmer.
18. Even if the defendant remains ex parte, the plaintiff, in order to obtain an enforceable decree, has to adduce evidence to prove that the defendant is not entitled for the benefits of the Act. Unless the Court is satisfied that the debt did not stand discharged, it will not pass a decree in favour of the creditor. Even if the plaintiff obtains a decree without convincing the Court that the defendant is not entitled for the benefits of the Act, it will not be a bar for the defendant to raise the said plea at any stage of the suit proceedings, appeal or execution proceedings. The mere passing of a decree will not operate as constructive resjudicata and the defendant will not be precluded to make an application raising the plea under the Act to get the benefits provided under the Act.
19. In all other suits, when the plaintiff pleads a particular fact or law and when the defendant denies the same, relevant issue has to be framed and the evidence has to be adduced by the respective parties depending upon the onus on the respective parties. Order XIV, Rule 1 C.P.C. deals with framing of issues in the suits in general where the first party approaches the Court on the basis of arising of cause of action to file such suit. The learned single Judge in this revision petition observed:
to expect the plaintiff in a suit for recovery of money, to get an issue framed even in the absence of a plea by the defendant or where the defendant remains ex parte, does not appear to be in conformity with the principles governing the law relating to framing of issues.
20. The doubt expressed by the learned single Judge is appropriate in respect of civil suits. But, a bar has been imposed on the Civil Court under Section 4(2)(a) of the Act to entertain a suit for recovery of money against the debtor as defined under Section 3(j) of the Act. When the Debt stood discharged, when there is a bar for entertaining the suits against the debtors under the Act, it is for the plaintiff who resorts to file a suit against the debtor under the Act, to convince the Court that the Act is not applicable to the defendant. Therefore, irrespective of the appearance or non-appearance of the defendant in the suit, the plaintiff has to adduce evidence to convince the Court regarding the maintainability of the suit against the defendant. If the plaintiff convinces the Court that the defendant is not entitled for the benefits of the Act, then the Court would examine the other factual aspects whether the defendant is liable for the debt, the extent of liability etc.
21. In the light of the express provisions under this special enactment regarding the burden of proof etc. under Sections 4 and 13 of the Act, the procedure prescribed under Order 14 C.P.C., which is general in nature, need not necessarily be applied.
22. In Kasturibai’s case (2 supra) a learned single Judge took view that before the burden under Section 13 is cast on the creditor to establish that the debtor is not entitled to the benefits of the Act, it should prima facie be established by a person claiming the benefit of the Act that he is a ‘debtor’ falling within the definition of Section 3(j) of the Act. It is only after the debtor establishes that he falls within the definition of debtor, the burden shifts to the creditor that such a debtor is not entitled to claim the benefit of the Act.
23. With due respect to the view expressed by the learned single Judge, we are unable to endorse the said view, in the light of the mandate under Section 4 that every debt shall be deemed to be discharged and the cause of action do not survive. When a statute mandates that the debt against the debtor under the Act did not survive, it is for the creditor to make out a case that the debt covered by such suit do not come within the purview of the Act. Therefore, the person claiming the benefit of the Act need not establish prima facie that he is a small farmer. In the light of the object of the Act, all artisans, agricultural labourers and agriculturists are entitled to the benefits of the Act unless the contrary is proved by the creditor or the debtor concedes that he is not entitled for the benefits of the Act.
24. Since the Act was brought into force with a specific object of relieving the debtors from indebtedness, the interpretation of any of the provisions has to be made keeping in view the above avowed object. The judgment in Kasi Viswanatham’s case (1 supra) was rendered by the Division Bench keeping in view the object of the Act. The following is the observation of the Bench in this regard.
The object of the Act, which is quite apparent not only from the preamble but also from the veins of the Act, is to provide relief from indebtedness to agricultural labourers, rural artisans and small farmers, Viz., weaker sections of the Society. The legislation is undoubtedly enacted with the policy to wipe out the indebtedness and to relieve the weaker sections against oppression and harassment at the hands of the creditor. Since this legislation has been enacted for achieving the Directive Principles specified in Article 46 of the Constitution of India, it therefore, necessarily calls for the import of the principle of purposive and liberal construction and not pedantic, narrow and literal interpretation; else, not only the objects will be in peril, but even the very Act will be in jeopardy.
25. Every debt on coming into force of the Act stands ipso facto discharged. Therefore, the Court inherently lacks jurisdiction to entertain a suit or to execute a decree already passed which is null and void. The Court gets jurisdiction only when it is established that the borrower is not the debtor within the meaning of the Act. When once the plea is raised and decided that the defendant is not the debtor within the meaning of the Act, the defendant cannot raise the objection once again in the execution proceedings. If a decree is passed ex parte without there being any opportunity to the defendant to place the relevant material to rebut the evidence of the plaintiff, he is not entitled to raise the plea at any stage of subsequent proceedings and in such a case, the Court is bound to adjudicate on the issue whether the defendant is not entitled for the benefits of the Act and whether the plaintiff is entitled for a decree as prayed for. In a suit filed before the Act came into force, the decree granted subsequent to the Act shall not be entertained by the executing Court unless it is established by the creditor plaintiff that the defendant was not a debtor within the meaning of the Act.
26. Therefore, we concur with the principle laid down by the Division Bench in Kasi Viswanatham’s case (1 supra) and it does not require any reconsideration. The law laid down in Kasi Viswanatham’s case holds the field. The reference is accordingly answered.