JUDGMENT
R. Bayapu Reddy, J.
1. This revision petition is filed by the Judgment Debtor in, O.S.No. 348 of 1984 on the file of the Principal District Munsif, Kavali questioning the orders dated 2-7-1993 passed in E.A.No. 237 of 1990 in E.P.No. 50 of 1985.
2. The first respondent, who is the decree-holder, had filed the suit for recovery of the suit amount against the present revision petitioner on the basis of a promissory note and a decree was passed against him in the said suit. The first respondent thereupon filed E.P.No. 50 of 1985 bringing the E.P. Schedule properties to sale and the sale was held on 14-12-1987. The first respondent-decree-holder himself purchased items 1,3,4 and 5 while the second respondent-auction purchaser purchased item-2 in the said auction. The sale was confirmed on 8-12-1989. Subsequently during the course of delivery proceedings, the petitioner filed E.A. No. 237 of 1990 under Section 47 CPC read with Section 4 of Act 45 of 1987 (for short “the Act’), contending that he is a small farmer and entitled to the benefits of Act 45 of 1987 and the decree debt shall, therefore, be deemed to have been discharged under Section 4 of the Act and the sale is void and shall be set aside.
3. The first respondent/decree-holder did not contest the petition before the lower Court. The second respondent, who is the auction purchaser, contested the petition contending that the petitioner is not a small farmer as the extent of land owned by him is more than the specified extent; that his plea as small farmer under the Act is belated and not bona fide as he did not raise any such plea during the earlier stage of the proceedings in the suit and in the execution petition and that, therefore, the petition may be dismissed.
4. On the basis of the material placed before him, the learned District Munsif dismissed the petition holding that the extent of land owned by the petitioner . is more than the specified extent and as such he is not a small farmer and that he is also not entitled to raise such plea as it is belated.
5. Aggrieved by such orders passed by the lower Court the present revision petition is filed by the Judgment-Debtor contending that the lower court had erred in dismissing the petition on the ground that the land owned and possessed by him is more than the specified extent and therefore he is not a small farmer and also on the ground that the petition is belated. The second respondent, who alone is contesting, has tried to contend that the lower Court has rightly found that the petitioner is not a small farmer; that the petitioner is also not entitled to claim the benefits under the Act as a small farmer not only on account of the delay involved in filing the petition but also as he is not entitled to raise such plea as the debt itself was not subsisting and as such the provisions of the Act cannot be resorted to for claiming the relief.
6. Heard both the counsel.
7. The points for consideration in this revision petition are:-
(i) whether the petitioner is a small farmer; and
(ii) if so, whether the petitioner is not entitled to claim the benefits of Act 45 of 1987 as a small farmer;
8. POINT No. 1: The specific contention of the petitioner is that himself and his brother constituted joint Hindu family and owned and possessed an extent of about Ac. 12.00 of dry land and there was partition between them in the year 1973 and in such partition, he got an extent of Ac. 5.15 cents of dry land; that he is having three major sons and as such he is having only l/4th share in the above said extent of Ac. 5.15 cents; that there was also a division between him and his three sons who had filed a suit for partition and separate possession of their shares in the year 1987 and the said suit was also decreed, that, therefore, the extent of land owned and possessed by him and which has to be taken into consideration to determine the question whether he is a small farmer or not, is less than the specified extent under the Act and that, therefore, he is a small farmer. He has also alternatively contended that even if the entire extent of Ac.12.00 originally owned and possessed by the joint family consisting of himself and his brother is to be treated as the land belonging to his family, he is still owning and possessing only an extent less than the specified extent under the Act as the shares of his three major sons in that extent cannot be taken into consideration while considering the question whether he is a small farmer or not. On the other hand, the second respondent/ auction purchaser appears to contend that the petitioner is having Ac. 8-42 Cents of self-acquired property and Ac.4.41 Cents of joint family property in which he is having l/4th share while his three major sons are having the remaining 3/4th share and that, therefore, the total extent of land owned and possessed by the petitioner will come to Ac.9-42 Cents of dry land which is more than the specified extent under the Act and that, therefore, he cannot be considered as a small farmer. The second respondent has also filed Ex. B-l, which is the certified copy of the R.O.R. (Record of Rights) in support of his contention in this regard. It is seen from a perusal of the impugned orders of the lower Court that the learned District Munsif relied upon Ex. B-1 and accepted the contention of the second respondent that the total extent of land owned and possessed by the petitioner is A.9-42 Cents of dry land and as such he is not a small farmer. But it is to be seen from a perusal of the material on record that the lower Court has erred in giving such finding regarding the extent of land said to be owned by the petitioner and that such finding is clearly erroneous as it is not based on the evidence adduced by him and also as it is not in accordance with the principles governing the applicability of the provisions of the Act.
9. It is not disputed in the present case that the debt contracted by the petitioner is his individual debt and not joint family debt. It is not even the case of the second respondent who alone has contested the proceedings that the debt is joint family debt. When the debt is the individual debt of the petitioner, his share alone in the joint family properties has to be taken into consideration and not the shares of the other coparceners who are, in the present case, the three major sons of the petitioner. It is also not disputed in the present case that the petitioner is having three major sons and all of them constituted joint Hindu family. They also filed the suit O.S.No. 73/87 on the file of the Sub-Court, Kavali, as seen from Ex. A-l which is the certified copy of the plaint in that suit which was also decreed as seen from Ex. A-9, which is the certified copy of the decree. The respondents 1 and 2 herein were also made parties to the said suit and they did not, however, choose to contest the same and an ex parte decree was, therefore, passed in that suit as seen from Ex. A-9. Therefore, the share of the petitioner in his joint family properties alone has to be taken into consideration while deciding the question whether he is a small farmer or not. The lower Court has clearly lost sight of this principle and it never made any attempt to consider whether the debt was joint family debt or individual debt of the petitioner and whether the share of the three major sons of the petitioner can be taken into consideration for determining whether the petitioner is a small farmer or not.
10. It is seen from a perusal of the impugned orders that the lower Court solely relied upon Ex. B-l, which is the certified copy of the Record of Rights, to come to the conclusion that the petitioner is owning an extent of Ac.9-42 Cents of dry land and as such he is not a small farmer. Ex. B-l is the certified copy of Record of Rights in which it is mentioned that an extent of Ac.4-41 Cents refers to family land of the petitioner while an extent of Ac. 8-42 Cents of land was acquired by the petitioner under some agreements or other documents. In view of such recitals found in Ex. B-l, the lower Court came to the conclusion that the extent of Ac. 8-42 Cents is the self-acquired property of the petitioner and he is having l/4th share in the joint family property of Ac. 4-41 Cents and as such, the total extent of land owned by the petitioner is Ac. 9-42 Cents. But it is to be seen from the material on record including the oral evidence that there is no sufficient proof as to which period Ex. B-l refers. The second respondent who is examined as R.W.2, has admitted during his cross-examination that he does not know the lands owned by the petitioner and his sons; that they own the lands as per Ex. B-l which was furnished to him by the Mandal Revenue Officer; that the petitioner and his three sons are living joint and that he does not know the details of the extents of lands mentioned in Ex. B-1 and he does not also know whether Ex. B-l pertains to the period when the petitioner and his brother were living joint. It is clear from the evidence of the petitioner who is examined as P.W.1 that the name of his grand-father also was Narasaiah and he had four sons including himself and that all the properties are ancestral properties. The name of Narasaiah is found in the recitals in Ex.B-1. Evidently on account of such circumstances, the lower Court came to the conclusion that the petitioner, whose name is also Narasaiah, acquired Ac. 8-42 Cents mentioned in Ex. B-1 under some documents like agreements etc., and as such they are his self-acquired properties. It is the admitted case of both parties that the joint family of the petitioner and his brother was having sufficient extent of land and the petitioner who was elder to his brother, was managing the family properties till the partition between himself and his brother. As already stated above, the second respondent has no knowledge about the particulars of the lands owned and possessed by the petitioner and his family members and also the lands mentioned in Ex. B-l. Under such circumstances, the lower Court has clearly erred in coming to the conclusion that the extent of Ac. 8-42 cents is the self-acquired property of the petitioner and that the remaining extent of A. 4-41 Cents is the Joint family property of the petitioner and his three sons. As already stated above, the three sons of the petitioner have filed a Civil Suit in O.S.No. 73/87 on the file of the Sub-Court, Kavali, to which the second respondent herein was also a party, and obtained a decree for partition of all the family properties. It is also to be seen from the admission made by R.W.2, who is the second respondent herein, that he filed the suit O.S. No. 52/90 on the file of the Sub-Court, Kavali against the present petitioner and his brother and three sons for recovery of some amounts contending that all of them constitute joint family and that Ex. A-4 is the certified copy of the plaint in that suit. It is also clear from the averments in the petition in E.A.No. 237 of 1990 that the petitioner categorically stated in this petition that all the properties owned and possessed by him are the joint family properties belonging to him and his three major sons. It is clear from the counter filed by the second respondent in the petition that he did not even deny such averments made in the petition regarding the nature of the properties. He only tried to contend that the petitioner was owning more extent of land and that the petition filed by him is belated. In view of all such circumstances, even if the entire extent of Ac.12.83 Cents found mentioned in Ex. B-l is said to belong to the joint family of the petitioner and his three major sons, though not his brother, the l/4th share of the petitioner in those properties will come only to an extent of Ac.3-21 Cents of dry land which is far below the specified extent of land under the Act. The lower Court utterly failed to refer to any of these facts and circumstances by discussing the evidence in its proper perspective and instead solely placed reliance upon Ex. B-l and straightaway came to the conclusion that the petitioner is owning an extent of Ac.9-42 Cents of dry land and, therefore not a small farmer. Such conclusion, which is not based on the evidence, is clearly erroneous and cannot be accepted.
11. In the Full Bench decision of our High Court reported in China Papayya Raju v. Prabhakar Rao, 1981 (2) ALT 441, it is observed that where an individual claims to be a small farmer, the land which he alone holds and personally cultivates should be taken into consideration and the lands belonging to the husband or the wife, as the case may be, and the children should not be taken into consideration and that where a debt is owed by a joint family, each unit thereof consisting of an individual, the wife or husband, as the case may be, of such individual and their unmarried minor children should be taken as a debtor within the meaning of the Act in respect of each share of the debt owed by the family. The view expressed earlier by this Court in the decisions reported in S. Lakshmana Rao v. D. China Papaiah Raju, AIR 1980 A.P. 191 and Krishna Murthy v. Govt. of Andhra Pradesh, which are the decisions of Division Bench, and also the decision of a Single Judge reported in Sunkanna v. Ramaswamy Setty, 1981 (1) ALT 82 is also to the same effect and these decisions were also referred to with approval in the above cited Full Bench decisions reported in China Papayya Raju v. Prabhakara Rao (1 supra). The said Full Bench decision of this Court was also relied upon in another decision of this Court reported in T. Rambabu v. V. Ramavathi, 1988 (1) ALT 987. In the present case, as already stated above, the debt is individual debt owed by the petitioner and as such, his share alone in the family properties has to be taken into consideration and not the shares of this three sons who are all majors in the present case and who had also filed a suit for partition against the petitioner and obtained a decree. In the present case, when such facts and circumstances are taken into consideration, the share of the petitioner in the family properties is less than the extent specified under the Act as already discussed above, and as such, he is to be considered as a small farmer.
12. POINT No. 2; The lower Court has chosen to dismiss the petition filed by the petitioner also on the ground that it was belated and as the petitioner did not raise any such plea as a small farmer at the stage of the proceedings in the suit or in the execution petition. It is, however, to be seen in this case that the debt was contracted only subsequent to the coming into force of Act 7 of 1977 and before Act 45 of 1987 came into force on 1-1-1988. The benefits of Act 45/87 were made available only on 1-1-1988 relating to the debts which were contracted between 29-12-1976, when Act 7/77 came into force, and 1-1-1988, when Act 45/87 came into force. As the suit was filed in the year 1984 and as the execution petition was filed in the year 1985 and as the sale was held on 14-12-1987 which are all prior to the coming into force of Act 45/87, there was no occasion or opportunity for the petitioner to raise the plea of small farmer before the sale was conducted. The sale was confirmed on 8-12-1989 which is subsequent to the coming into force of Act. 45/87. When the petitioner received notice in a petition filed by the second respondent for amendment of the sale certificate issued to him, he filed E.A.No. 237 of 1990 raising the plea of a small farmer. Therefore, the lower Court has clearly erred in dismissing the petition on the ground that the petition is belated and that he did not choose to raise any such plea at any earlier stage in the suit and in the execution petition.
13. The learned counsel for the second respondent tries to contend that the petition filed by the petitioner raising the plea of small farmer is also barred by the principles of constructive res judicata and waiver as he did not choose to raise any such plea before the sale was confirmed and also as he expressed no objection for issue of a cheque in favour of the decree-holder when a cheque petition was filed for withdrawal of the amount deposited into Court towards sale consideration. He also tried to rely upon the decision of the Supreme Court reported in Provash Chandra Dalui v. Biswanath Banerjee, and P.K. Vijayan v. Kamalakshi Amma, 1994 (2) APLJ 73 (SC) = 1994 (2) ALT 21 (D.N.) in support of his contention in this regard. But such contention cannot also be accepted and the above cited decisions cannot be said to be of any assistance for such contention in view of the facts of the present case and the relevant provisions of the Act. The sale was conducted on 14-12-1987, which is prior to the date of commencement of the Act on 1-14988. The confirmation of the sale took place on 8-12-1989 which is subsequent to the coming into force of the Act. The decree-holder, who is the first respondent herein and who had purchased items 1, 3, 4 & 5, appears to have entered into a compromise with the petitioner herein, who is the Judgment Debtor, and filed cheque petition for withdrawal of the amount lying in Court deposit towards sale consideration and the petitioner herein is said to have reported no objection for issue of cheque in favour of the decree- holder, and the Court appears to have accordingly issued the cheque on 17-4-1990 in favour of the decree-holder and F.S. was recorded and E.P, was terminated on 17-4-1990. The petitioner had filed E.A. No. 237 of 1990 raising the plea of small farmer on 30-4-1990. It is the contention of the learned counsel for the second respondent that in view of the above said circumstances including the fact that the petitioner did not even oppose the cheque petition filed by the decree-holder, it can be said that the petitioner had waived his rights to raise the plea of small farmer subsequently and contend that the decree debt shall be deemed to have been discharged under the provisions of the Act. But it is to be seen that the petitioner appears to have expressed no objection for issue of the cheque in favour of the decree-holder only on account of the compromise that is said to have been entered into between them, and there was no such cheque petition filed by the second respondent for issue of any cheque and there was no occasion for the petitioner to give his consent in such petition as was the case with the decree-holder. Simply on account of the fact that the petitioner expressed no objection for the decree-holder to obtain the amount lying in the Court deposit in view of the compromise entered into between them, it cannot be said that the petitioner had waived his right to raise the plea of small farmer at a later stage, nor can it be said that he is barred by any principle of waiver or constructive res judicata as contended by the learned counsel for the second respondent. It is to be seen in the present case, as to be discussed below, that the debt was in existence by the time the Act came into fore on 1-1-1988 and the sale was held only prior to the coming into force of the Act though it was confirmed subsequently on 8-12-1989 and that inasmuch as the confirmation of the sale took place only subsequent to the coming into force of the Act, the petitioner cannot be said to have been deprived of his right to invoke the provisions of the Act for claiming the benefits as a small farmer. Therefore, the petitioner cannot be said to be barred by the principles of waiver or constructive res judicata for raising the plea of small farmer in the present case.
14. The learned counsel for the second respondent next tried to contend that when once the sale is confirmed it becomes absolute and that in the present case the sale was held on 14-12-1987 and it, therefore, became absolute on 14-12-1987 which is prior to the coming into force of the Act and that inasmuch as the sale had already become absolute, the petitioner is not entitled to raise the plea of small farmer subsequently. He has also tried to rely upon the decision of the Supreme Court reported in Pattam Khader Khan v. Pattam Sardar Khan, 1997 (1) ALT 20 (SC) in support of such contention. But such contention also cannot be accepted in view of the relevant provisions of the Act. The provisions of Section 3 of Act 45 of 1987 which are relevant for the present purpose are as follows:-
“3. Discharge of Debts incurred on or after 29th December, 1976;- (1) Notwithstanding anything in 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 Debtors’ Relief Act, 1956, the Andhra Pradesh (Scheduled Area) Money Lenders Regulation , 1960, the Andhra Pradesh Indebted Agriculturists, Landless Labourers and Artisans (Temporary Relief) Act, 1976 or any law for the time being in force, or any contract or other instrument having the force of law with effect on and from the commencement of this Act, every debt borrowed or incurred during the period between the 29th December, 1976 and the date of such commencement 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 person.
(b) All suits and other proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of the 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 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 the mortgaged property shall be released in favour of such debtor.
Explanation:- Nothing in this section shall be construed as entitling any debtor for refund of any part of any debt repaid or interest paid already by him or recovered from him before such commencement.”
As per clause (b) of sub-section (2) of Section 3 of the Act, all suits and other proceedings including appeals, revisions, attachments or execution proceedings pending at the commencement of the Act against any debtor for the recovery of any debt shall abate. The proviso to the said clause (b) says that nothing in clause (b) shall apply to a sale, in respect of the debt if such sale was held and concluded before the commencement of the Act when the property is movable property, and if the property is immovable property, the provisions of clause (b) will not apply only when the sale is confirmed before the commencement of the Act. This is clear from sub-clause (ii) of the proviso to clause (b) of Section 3(2) of the Act. Therefore, a distinction is clearly made between the sale of movable property and the sale of immovable property relating to the applicability of the provisions of clause (b). In the present case, the properties that were sold are immovable properties and the sale was confirmed subsequent to the commencement of Act 45 of 1987. Therefore, the provisions of clause (b) will apply to the present case even though the sale was held prior to the commencement of the Act. The provisions of sub-section (1) of Section 3 specifically state that every debt borrowed or incurred during the period between 29-12-1976 and the date of commencement of the Act, which is 1-1-1988, owing to any creditor by a small farmer shall be deemed to be wholly discharged. In the present case, the debt was admittedly borrowed between 29-12-1976 and 1-1-1988 and the sale also was not confirmed before 1-1-1988. As such, the debt shall be deemed to have been discharged under the provisions of Section 3(1) of the Act. Section 3(2)(a) provides that no Civil Court shall entertain any suit or other proceedings against the debtor for the recovery of any amount of the debt which is deemed to be discharged under sub-section (1). As already stated above, clause (b) of Section 3(2) provides that all proceedings including execution proceedings pending at the commencement of the Act against any debtor shall abate. Therefore, in the present case, the debt borrowed by the petitioner stood wholly discharged and the execution proceedings, in which the sale was held but not yet confirmed by the time the Act came into force on 1-1-1988, stood abated. Unless and until the sale is confirmed, the sale will not become absolute. Inasmuch as the sale was not confirmed by the date of coming into force of the Act, the second respondent who is the auction purchaser, cannot be said to have acquired any rights in such property, and even before the sale was confirmed on 8-12-1989, the debt had become discharged and the execution proceedings stood abated. Therefore, the contention of the learned counsel for the second respondent that the petitioner is not entitled to raise the plea of a small farmer as the sale was already confirmed prior to the filing of E.A.No. 237 of 1990, cannot be accepted.
15. The learned counsel for the second respondent has also tried to contend that by the time the petitioner filed E.A.No. 237 of 1990 raising the plea of a small farmer, there was no debt in existence as the sale was already confirmed; that there was no relationship of debtor and creditor between the petitioner and the first respondent and that inasmuch as there was no debt, the question of applicability of Act 45 of 1987 does not arise. He has also tried to rely upon the decision of our High Court reported in Suresh Pawn Brokers, Nellore v. Appellate Tribunal, Nellore, 1983 (2) ALT 42 (NRC) in support of his contention in this regard. But this contention also has no substance in it and the above cited decision is not of any assistance to the second respondent in the present case. As already stated above, the debt was borrowed during the period between ,29-12-1976, and 1-1-1988 when Act 45 of 1987 came into force and such debt stood wholly discharged under the provisions of Section 3(1) of the Act. ‘Debt’ is defined in Act 7/77 as 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 the Act. ‘Debtor’ is defined in Act 7 of 1977 as an agricultural labourer, a rural artisan or a small farmer, who has borrowed or incurred any debt before the commencement of the Act. All the provisions of Act 7 of 1977 will apply to a case covered by the subsequent Act 45 of 1987. In the present case, the debt was borrowed and was subsisting by the date of commencement of Act 45 of 1987. Inasmuch as the sale was not confirmed by the time the Act came into force, the said debt stood wholly discharged and the pending execution proceedings stood abated, as already stated above. In the decision of this Court reported in B. Ramakoti Bhaskara Anjaneyulu v. M. Moti Begum and Ors., 1983 (2) ALT 28 (NRC) it is observed that when the debt was subsisting at the commencement of the Act, the execution proceedings will abate and the sale becomes void when it was not yet confirmed by the date when the Act came into force, It is, therefore, clear that inasmuch as the debt borrowed by the petitioner was subsisting by the date when the Act 45/8.7 came into force and inasmuch as the sale was confirmed only subsequent to the coming into force of the Act, the debt shall be deemed to have been discharged by operation of law and the pending execution proceedings stood abated, and when once the execution proceedings stood abated even the sale anterior to the coming into force of the Act becomes void as in the eye of law there is no debt and no separate order need be made subsequently to set aside such a sale. The same view was expressed by this Court in the above cited decision also.
16. The learned counsel for the second respondent has also tried to contend that in order to claim the benefits of Act 45 of 1987 as a small farmer, the initial burden is upon the petitioner to show that he is a debtor as contemplated under the Act and that when he discharges such initial burden, then alone the decree-holder is expected to discharge the burden to prove that the debtor is not entitled to claim the benefits as a small farmer and that in the present case, the petitioner has failed to discharge such initial burden and as such he is not entitled to claim any benefits as a small farmer under the Act. He has also tried to rely upon the decisions reported in Appalaswamy v. Ramanamma, 1984 (2) ALT 68 and K.V. Rama Reddy v. M. Viswanatham, in support of such contention. It is the contention of the learned counsel for the second respondent that even though it is pleaded by the petitioner that he is having land less than the specified extent, he has not pleaded about his income from other sources; that under Section 3(t) of Act 7 of 1977 a person can be considered as a small farmer only when his principal means of livelihood is income derived from agricultural land and when he holds and personally cultivates the specified extent of land, and he cannot, however, be considered as such a small farmer if his 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 the Act. The contention of the learned counsel for the second respondent appears to be that inasmuch as the petitioner failed to allege and prove that his income does not exceed one thousand and two hundred rupees in any two years within three years immediately preceding the commencement of the Act, he can be said to have failed to discharge the initial burden of proof that he is a small farmer and as such he cannot be permitted to invoke the provisions of the Act to claim the benefits as a small farmer. But this contention also cannot be accepted in view of the facts of this case. It is seen from a perusal of the petition in E.A.No. 237 of 1990 filed by the petitioner, that he specifically raised the plea that he is holding and cultivating less than the specified extent of land; that his source of livelihood is only agriculture and he has no other income except from agriculture. Such averment made in the petition was not even denied by the second respondent in the counter filed by him. Even subsequently during the course of enquiry, the second respondent did not even come up with the contention that the petitioner was having other source of income apart from agriculture at any point of time. In view of such circumstances, the above said contention of the learned counsel for the respondent cannot be accepted.
17. He has also next tried to contend that in the present case, the dispute regarding the applicability of Act 45 of 1987 is not between the debtor and the creditor, but only between the debtor and a third party who is the auction purchaser relating to item-2; that when once a third party is the auction purchaser and when the sale held in Court auction relating to the property purchased by a third party is confirmed, it will not open to the debtor to raise the plea of a small farmer so as to extinguish the rights acquired by a third party-auction purchaser in the sale held and confirmed by the Court. But Act 45 of 1987 does not make any difference between a purchase made by a decree-holder and a purchase made by a third party in the Court auction. As already stated above, Section 3(1) provides that the debt which was borrowed prior to the commencement of the Act stands wholly discharged and that all the execution proceedings pending at the commencement of the Act stand abated. Explanation to Section 3 of the Act merely provides that nothing in Section 3 shall be construed as entitling any debtor for refund of any part of any debt repaid or interest paid already by him or recovered from him before such commencement. But in the present case, there was no such payment or discharge of any portion of the debt by the petitioner nor is there any effort made by him to seek refund of such debt which was already discharged. It is clear from such provisions of the Act that the petitioner cannot be deprived of the benefits of Section 3 of the Act on the ground that a third party has purchased the property in the Court auction. In the decision of our High Court reported in B.C. Sunkanna v. Ramaswamy Setty, 1981 (1) APLJ 91. it was observed by this Court that under Section 4 of Act 7 of 1977, the debt against the Judgment Debtor would stand discharged and no civil Court can take any further steps to execute the decree and that if the petitioner’s property was purported to have been sold in execution of such decree, which is a nullity, it cannot transfer the rights in favour of any person notwithstanding the fact that the sale was conducted under official auspices. In the present case also, inasmuch as the debt stood discharged and the pending execution proceedings had abated even before the confirmation of the sale, which took place only subsequent to the coming into force of the Act 45 of 1987, the second respondent who had purchased item-2 in Court auction cannot be said to have acquired any rights under such sale. The petitioner, who is the Judgment-Debtor, is therefore entitled to seek the benefits as small farmer under the provisions of Act 45 of 1987 and the lower Court has, therefore, clearly erred in denying such benefits to the petitioner and dismissing the petition filed by him.
18. In the result, the revision petition is allowed but without costs and the impugned orders of the lower Court are set aside thereby allowing the petition filed by the petitioner in E.A.No. 237 of 1990 but without costs.