I. S. ISRANI, J. - (1.) THIS revision petition has been filed by the petitioner judgment debtor against the order dated 5th November, 1982 passed by the learned Munsiff, Neemkathana in civil execution case No. 7/80.
(2.) A decree was passed by the trial court on October 11, 1971 in favour of Visheshwar Dayal against the petitioner in civil suit No. 12/69 After passing of the decree, Shri Visheshwar Dayal died and the non petitioners submitted an execution application alongwith an application to substitute their names in place of the deceased decree holder. The petitioners raised several objections including the one challenging the capacity of the non petitioners to claim to be the legal heirs and representatives of the deceased decree holder. Apart from this, a certificate Ex. A/1 issued by the Tehsildar in favour of petitioner Rameshwar was also filed, which shows that petitioner Rameshwar was a scheduled debtor as defined in the Rajasthan Scheduled Debtors (Liquidation of Indebtedness) Act, 1976 (hereinafter called as the Act.) Learned trial court after recording the statements of both the parties came to the conclusin on that the certificate Ex. A/1 was not reliable as the same was granted without making necessary enquiry and that the petitioner was not a scheduled debtor, as such he cannot be exempted from payment of the amount for which the execution application has been filed. The contention of Mr. NX. Pareek, learned counsel for the petitioners is that sub clause (c) of section 4 of the Act provides that no civil court shall entertain any proceeding against the scheduled debtor for recovery of any amount of such debt including the interest, if any. Section 5 provides for the power given to Tehsildar and Inspector, Land Records to issue such certificates and sec. 6 provides that when a debtor produces a certificate in his favour under sec. 5 of the Act. the civil court shall presume that the debtor is a scheduled debtor and the burden of proving to the contrary shall lie on the creditor. It is, therefore contended by the learned counsel that the trial court committed gross illegality in rejecting the certificate as it was bound by law to presume that the petitioner was a scheduled debtor as per the certificate issued by the Tehsildar. Mr. Sahid Hasan, learned counsel for the non petitioner has supported the order of the trial court and states that the certificate Ex. A/1 issued by the Tehsildar has been rightly rejected and that the certificate itself has been wrongly issued because the petitioner is not covered by the definition of rural artism as given in sub-clause (1) of section 2 of the Act. I have heard learned both the counsel and also gone through the judgment of the trial court as also the relevant papers. It is clear that as per the provisions of Sec. 6 of the Act, a presumption has to be drawn when a certificate of Tehsildar is issued that the petitioner is scheduled debtor. However this presumption is rebuttable and the non petitioners are at liberty to adduce such evidence, which may disprove the correctness of the certificate. Learned trial court has, therefore, committed illegality in ignoring the certificate Ex. A/1 issued by the Tehsildar under Sec. 5 of the Act merely on the ground that the Tehsildar had made no enquiry. The assertion of the trial court that the certificate not been issued on the prescribed form, is also not correct as the certificate is in form No. 2 has provided in the Rajasthan Scheduled Debtors (Liquidation of Indebtedness) Rules, 1976. In the result, the revision petition is accepted and the impugned order of the trial court dated 5. 11. 82 is set aside. It is however, made clear that both the parties shall be permitted to adduce their evidence afresh. It is the non petitioner who shall have to discharge the burden of disproving the presumption raised under section 6 regarding the petitioners being the scheduled debtors as certified in Ex. A/1. the certificate issued by the Tehsildar. No order as to costs. . ;