S.K.MAL LODHA, J. - (1.) BY this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, the appellant, who is judgment -debtor, questions the correctness of the judgment dated April 10, 1975, 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 judgement debtor. He filed an objection that as he is an agriculturist, the attached houses are not liable to attachment and sale under Section 60(1)(c), C.P.C. The objection was dismissed by the executing court by it 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 Section 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 Section 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 Himmatmal and another under Section 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 Section 6 of the Act, the decree -holder -respondent was examined by the creditor Himmat Mal as A.W.I 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 Section 8 of the Act. It is also not in dispute that no individual notice was given to the decree -holder -respondent under Section 7 of the Act. On December 4, 1973, the judgment -debtor submitted an application before the executing court stating that the 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 ail purposes and as such he has got no right to execute the decree, which he has obtained against his (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 Dec. 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, be 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 order dated January 19, 1974. Being dis -satisfied, 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 Section 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 Section 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 sold 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.
(3.) 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.;