A.D. Koshal, J. - (1.) THIS petition arises from a suit brought by the plaintiff -respondent for recovery of Rs. 992/ - from the defendants -petitioners on the basis of bahi entry Exhibit P. II which is dated the 24th of July, 1968, rind according to which the plaintiff was found entitled to a sum of Rs. 800/ - from the defendants on settlement of accounts. The suit was decreed in full with costs by the trial Court and an appeal filed by the defendants was also dismissed with costs by the Senior Subordinate Judge, Rohtak. That is why the defendants have come up in revision to this Court.
(2.) IN order to appreciate the solitary contention raised by Learned Counsel for the petitioners reference will have to be made to the provisions of sub -section (1) and (2) of section 7 and sub -section (2) of section 30 of the Punjab Relief of Indebtedness Act, 1934, Those provisions in so far as they are relevant for the proposes of deciding this petition are reproduced below : 7(1) 'Debt' includes all liabilities of a debtor * * * * * (2) 'Debtor' means a person who owes a debt and - -(i) who both earns his livelihood mainly by agriculture, and is either a landowner, or tenant of agricultural land, or a servant of a landowner, or of a tenant of agricultural land, or (ii) who earns his livelihood as a village menial paid in cash or kind for work connected with agriculture, or (iii) whose total assets do not exceed five thousand rupees : Provided that a member of a tribe notified as agricultural under the Punjab Alienation of Land Act, 1900, shall be presumed to be a debtor as defined in this section until it is provide that his income from other sources is relater than his income from agriculture. 30(2) any suit in respect of a debt as defined in section 7, advanced after the commencement of this Act, no Court shall pass or execute a decree or give effect to an award in respect of such debt for a larger sum than twice the amount of the sum found by the Court to have been actually advanced less any amount already received by a creditor. It is urged on behalf of the petitioners that they are entitled to the benefit of sub -section (2) of section 30 in accordance with the provisions of which a decree for no more than Rs. 40/ - could be passed against them because the principal amount advanced to them was only Rs. 320/ - out of which they had paid back a sum of Rs. 100/ - to the respondent I find myself unable to agree with their Learned Counsel on the point. Before a suit can be said to fall within the ambit of that sub section, it must be shown that it is in respect of a debt as defined in section 7, i.e., that it is the liability of a debtor as defined in sub -section (2) of that section, namely, a person who earns his livelihood in one of the modes specified in clauses (i) and (ii) of the sub -section last mentioned or whose total assets do not exceed five thousand rupees. Whether a person is a debtor or not is, therefore, a question of fact in each case ; which must be pleaded and proved before benefit of the provisions of sub -section (2) of section 30 can be extended to him. A perusal of the written statement filed by the petitioners in the trial Court shows that no plea about their being "debtors" or about their being entitled to the said benefit was ever taken. And if that be so, they cannot now be heard to say that are debtors within the meaning of sub -section (2) of section 7 an assertion which is controverted on behalf of the respondent. It is true that some evidence was led by the petitioners before the trial Court to the effect that one of them, namely, defendant No. 1 was a servant of a land -owner and earned his livelihood mainly by agriculture but such evidence was led in a wholly different context and without giving the plaintiff notice of the plea now being raised so as to afford an opportunity to him to produce his own evidence in rebuttal of the plea. In this view of the matter the contention is turned down as untenable. For the reasons stated the petition fails and is dismissed with costs.;