S. K. MAL LODHA, J. - (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. Himmatmal and Milapchand, who were also the creditors of the judgment-debtor, filed an application under s. 6 of the Rajasthan Relief of Agricultural Indebtedness Act, 1957 (Act No. XXVIII of 1957) (for short 'the Act') before the Additional District Judge (Debt Relief Court), Jalore. The application was admitted and resort was made to s. 7 of the Act for issuance of the notices to all creditors. It may be stated here that in the application that was filed by Himmatamal and another under s. 6 of the Act, the decree-holder-respondent was not made a party and the decretal debt of the judgment-debtor appellant was not shown in the list of debts. Here, it may be mentioned that during the trial of that application under s. 6 of the Act. the decree-holder-respondent was examined by the creditor Himmat Mal as A. W. 1 to prove the hand writing of the judgment-debtor on March 26, 1971. He appeared as he was summoned by the creditor Himmatmal as his witness in support of his claim. It is not in dispute that no claim was filed by the decree-holder-respondent before the Debt Relief Court under s. 8 of the Act. It is also not in dispute that no individual notice was given to the decree-holder-respondent under s. 7 of the Act. On December 4, 1973, the judgment-debtor submitted an application before the executing court stating that he decree-holder-respondent has not submitted any statement of claim before the Debt Relief Court within the prescribed time and so his claim should be deemed to have been discharged for all purposes and as such he has got no right to execute the decree, which he has obtained against him (judgment-debtor) and regarding which the execution proceedings were levied and the house of the judgment-debtor were attached. After that, another application was submitted by the judgment-debtor on December 18, 1973 that the houses could not be attached and sold in execution of the decree of the decree-holder-respondent. The ground mentioned in that application was that the judgment-debtor-appellant had already been declared as an agriculturist by the Debt Relief Court, Jalore, vide its order dated July 28,1970. Both the applications were dealt with together by the Additional District Judge, Sirohi. So far as the application dated December 4,1973, was concerned, it came to the conclusion that by order dated October 21, 1967, his objection that attached houses were exempt from sale and attachment, has already been dismissed and so on the basis of the order dated July 28, 1970, he cannot claim that he is an agriculturist and the attached houses are exempt from attachment and sale and that the order operates as res-judicata. So far as second application regarding discharge of the debt of the decree-holder-respondent is concerned, the learned Additional District Judge was of the opinion that the decretal debt of the decree-holder cannot be deemed to have been discharged on account of the non-filing of the claim by him before the Debt Relief Court. In view of the aforesaid findings, both the applications were dismissed by the learned Additional District Judge, Sirohi by order dated January 19, 1974. Being dissatisfied, an appeal was filed. Before the learned single Judge, on behalf of the judgment-debtor, two contentions were raised:- (1) that the judgment-debtor was declared as an agriculturist by the Debt Relief Court, Jalore in the proceedings initiated by the creditor Himmatmal under s. 6 of the Act against the judgment-debtor and so he is an agriculturist and as such the attached houses are not liable to be sold in execution of the decree against him by the decree-holder ; (2) that under the provisions of s. 8 of the Act, the debt of the decree-holder shall be deemed to have been discharged for the failure and omission of the decree-holder to submit his claim. Both the contentions were repelled by the learned single Judge and as a consequence of that, the appeal was dismissed. It may be stated that some preliminary objections were raised on behalf of the decree-holder, but the learned single Judge was of the opinion that as the appeal of the judgment-debtor was going to be dismissed on merits, it is not necessary to examine them. He did not permit the judgment-debtor to raise the objection that the interest of a tenant in an agricultural holding cannot be said in execution because of sections 36 and 37 of the Rajasthan Tenancy Act The judgment-debtor did not remain satisfied with the judgment of the learned single Judge dated April 10, 1975 and has filed this special appeal, as aforesaid. We have heard Mr. Rajendra Mehta, learned counsel for the appellant and we had no advantage of hearing any person on behalf of the respondent though service was effected on him. In the first instance, it was argued by the learned counsel for the appellant that the executing court, namely, the Additional District Judge, Sirohi, as well as the learned single Judge committed serious error of law when they held that the decretal debt of the decree-holder outstanding against the judgment debtor cannot be deemed to have been discharged under s. 8. of the Act. In support of his submission, Mr. Rajendra Mehta, learned counsel for the appellant has placed strong reliance on Keshav V. Waman (l) and 1977 Mah. L. J. 185. It may be stated that the second authority relied on by the learned counsel was not placed before us. It is not available in the Court's Library, but in Quinquannial Digest, 1976-80, while dealing with s. 14 of the Bombay Agricultural Debtors Relief Act (No. XXVIII of 1947), it is stated as under:- "the expression "all creditors" used in Section 14 in connection with general notice under s. 14 (b) is not limited to the class of Creditors referred to in sub-cl. (a), but refers to "all Creditors" of the debtor even though their names may not be in the application. An award made under the Act is not only an award between the debtor and such of the Creditors as are mentioned in S. 4 or upon whom notice has been served under S. 14 (a ). It is an award between a debtor and all his creditors including mortgagees also. " It will not be proper for us to express any opinion one way or the other on the case reported in 1977 Mah. L. J. 185 in the absence of the full report. This has necessitated us to examine the provisions of ss. 6, 7 and 8 of the Act. S. 6 of the Act provides for application to a Debt Relief Court. Sub-s. 6 reads as under: - "such an application praying for the determination of the debts outstanding against a debtor, may also be filed by his creditor or his surety, - whether such debtor is liable for such debts individually or jointly with another person. " sub-s. (3) of s. 6 lays down that every application under sub-sec. (l) or sub-sec. (2) shall be signed and verified in accordance with O VI, r. 15, of the first Schedule to the Code of Civil Procedure, 1908 and shall contain the particulars mentioned therein, one of which is a statement of all debts outstanding against him including those referred to in sec. 4, as nearly as may be ascertainable and the names and addresses of his creditors. Sec. 7 provides preliminary procedure in proceedings under r. 5 of the Act. The preliminary procedure that is to be followed under s. 7 is that all creditors of the applicant including those to whom any liability referred to in s. 4 is due are to be impleaded as parties to the proceedings. All creditors are to be joined as parties to the proceedings. The Debt Relief Court has to (1) fix date of hearing : (2) cause notice of date together with a copy of the application to be served on all creditors of the applicant and (3) the copies of such notices and applications are to be affixed on the Court House. R. 7 of the Rajasthan Relief of Agricultural Indebtedness Rules, 1957 prescribes manner of issue of notice under s. 7 and according to it, besides affixing copies of the notice under s. 7 to the court-house, the copies of the notices and of the application are required to be sent by registered post to every creditor named by the creditor who has moved the application under s. 6 (2) of the Act, at his expense.
(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. Keshav's case (1) cannot be availed of by the learned counsel for the appellant. In that case Ss. 14 (b), 15 and 17 of the Bombay Agricultural Debtors Relief Act, 1947 were considered. Learned Chief Justice interpreted the expression "all creditors used" in s. 14 (b) and it was held that it is not confined to those creditor, whose names and addresses are given in the application, for, the Legislaturs has used the general expression "all creditors" and not specified or limited the class of creditors to the class referred to in sub-cl. (a), as it makes it clear that the intention was to give a general notice for giving intimation to all creditors of the debtor. It appears that he was influenced by the fact that the object of the Bombay Act was that all creditors should be adjusted. In support of that, he referred to s. 17 of the Bombay Act, which provides that certain preliminary points stated therein should be decided first and it is only thereafter that the matter can further be proceeded with. There is no provision similar to s. 17 of the Bombay Act in the Act. The affixing of copies of the notice and the application to the Court House cannot be considered to be a notice under s. 7 of the Act to the creditors, who have not been joined parties to the proceedings or whose names have not been included in the list of creditors. This is further apparent by the use of word 'and' in s. 7, which says that all such creditors shall be served with notice together with a copy of the application and besides that copies of such notice and application have also to be affixed to the court-house. The contention of the learned counsel for the appellant that the affixation of the notice and the application to the court-house will be considered to be a notice to the decree-holder-respondent under sec. 7," cannot be acceded to, for, it will lead to anamolous consequences and operate as hardship. To illustrate, it may be stated that if the petitioner-creditor under s. 6 of the Act and the judgment-debtor collude, then, the creditors, who are not residents of the State where the Debt Relief Court is situate, and if no individual notice is issued to them, they will be deprived of filing the statement of their claim against the judgment-debtor and for failure to file the claim, the consequences of the discharge of the claim will ensue. This could not have been the intention of the Legislature. S. 8 (1) clearly makes a mention that the deeming provisions regarding the discharge of the claim for all purposes will only come into play when the formalities as required by s. 7 of the Act are fulfilled. In view of the language used in s. 14 (b) and s. 17 of the Bombay Act, we are of opinion that the principles laid down in Keshav's case (1) cannot be invoked for interpreting the provisions of ss. 7 and 8 of the Act. The scheme of the Act is quite different. Kashav's case (l) is, therefore, distinguishable. Provisions of a. 10 (1) of the Madras Debt Conciliation Act (No. XL of 1936) ('the Madras Act' hereinafter) are somewhat similar to the provisions of s. 8 of the Act. In Shanmugavelayjudham V. Ramanathan (2), the question arose whether the decree debt was discharged under s. 10, sub-sec. (2), cl. (B) of the Madras Act for failure on the part of the debts owed to him in compliance with the provisions of sub-sec. (1) of s. 10 of the Madras Act. Sec. 10 (1) of the Madras Act contemplated issue of a notice and service thereof calling upon every creditor to submit a statement of debt owed to him by the debtor with a view to effect settlement and that if after the receipt of such notice creditor fails to file the statement as required by sub-s. (1), and cl. (5) of sub-s, (2) the debt shall be deemed for all purposes and all occasions to have been duly discharged. Satyanarayan Rao J. , observed as under:- "the foundation, therefore, for the argument that the debt must be deemed to have been discharged within the meaning of the section is the service of notice contemplated by s. 10 (1 ). " We may mention that in Shanmugavelayjudham's case (2) an argument was raised that the decree-holder had notice of the filing of the petition under the Debt Conciliation Act as there was an application to stay execution of the decree under s 25 of the said Act and from that, an inference should be drawn that he had knowledge about the proceedings under the Madras Act. The learned Judge opined that at the most from the notice of the stay application what could be inferred is that the notice was merely a notice of proceedings and not a notice calling upon the creditor to file a statement of the debts due to him from the debtor within the meaning of s. 10 (1) of the Madras Act. " ;