C.Y. Somayajulu, J.
1. Defendant in O.S.No. 404 of 1982 on the file of Principal District Munsif's Court, Kovur, Nellore District is the appellant in this Second Appeal. Respondent is the plaintiff in the said suit. For the sake of convenience, the parties would hereinafter after be referred as they are arrayed in the trial Court.
2. The suit is filed for a declaration of the title of the plaintiff to the plaint schedule property. The case of the plaintiff is that defendant in execution of the decree obtained against him and his wife in O.S.No. 54 of 1971 on the file of the court of the Subordinate Court, Kavali on the foot of a promissory note executed by them in his favour filed E.P.No. 45 of 1975, which was dismissed consequent on the promulgation of A.P. Ordinance No 25 of 1976. Again after the coming into force of A.P. Act 7 of 1977, defendant filed E.P.No. 7 of 1979 on 30-1-1979 and got attached the plaint schedule property belonging to him, and Ac.1-21 cents of land belonging to his wife, but brought the plaint schedule property only to sale. Since he does not own any property other than the plaint schedule property, which is Ac.0-70 Cts of wetland, and is personally cultivating the same he is a 'small farmer' within the meaning of A.P. Act 7 of 1977 and so the decree obtained by the defendant against him in O.S.No.54 of 1971 stood abated. Because of his illness he remained ex parte in E.P.No. 7 of 1979 and so there was no opportunity for him to claim the benefit of A.P. Act 7 of 1977 in the said E.P. Taking advantage of his absence, defendant by playing fraud on the court, brought the plaint schedule property to sale and purchased the same in court auction, suppressing the fact of his being a 'small farmer' within the meaning of A.P. Act 7 of 1977. Hence the said sale is void and inoperative and so he continues to be the owner of the plaint schedule property. The case of the defendant is that after obtaining a decree in O.S.No.54 of 1971 against the plaintiff and his wife he filed E.P. No. 45 of 1975, but in view of the promulgation of A.P. Ordinance 25 of 1976, staying execution of decrees above Rs. 1,000/-, he did not press the said E.P. After the conning into force of A.P. Act 7 of 1977 since he is a small farmer and the plaintiff is not, he filed E.P.No. 7 of 1979 to execute the decree obtained by him in O.S.No.54 of 1971 and got attached the plaint schedule property belonging to the plaintiff and Ac.1-21 cts. belonging to his wife. Plaintiff and his wife, having received summons in the said E.P.No. 7 of 1970, chose to remain ex parte at Rule 22 stage. Thereafter, sale notices were also served on them. They engaged an advocate but did not choose to file a counter and so, the court ordered further steps and ordered sale of the plaint schedule property. In that sale he after obtaining permission to bid, participated in the auction and became the highest bidder. The amount due to him as per E.P. was set off, full satisfaction of the decree was recorded. The sale was confirmed on 17-12-1979 and after issuance of the sale certificate, he filed E.A.No. 18 of 1980 and obtained delivery of possession of the plaint schedule property on 10-2-1980, and the said delivery was recorded on 12-2-1980. No fraud was played by him on the court. When the plaintiff, his wife and another tried to interfere with his peaceful possession and enjoyment of the plaint schedule property, he filed O.S.No. 233 of 1980 against them seeking a decree of permanent injunction, and obtained a decree against them and so there is no cause of action for filing the suit and the suit is also not maintainable.
3. On the basis of the pleadings, the trial Court framed three issues and two additional issues for trial. In support of his case, plaintiff examined himself as P.W.1 but did not adduce any documentary evidence. The defendant examined himself as D.W.1 and marked Exs.B-1 and B-2. The trial Court held that the plaintiff and defendant are not small farmers within the meaning of A.P. Act 7 of 1977 and that plaintiff is not entitled to the benefit of A.P. Act 7 of 1977, that the court sale held on 15-10-1979 in E.P.No.7 of 1979 is a valid sale and cannot be set aside, and so plaintiff is not entitled to the declaration sought or recover possession of the plaint schedule property and dismissed the suit. On appeal by the plaintiff in A.S.No. 4 of 1989, the learned Subordinate Judge, Kovur, reversed the findings of the trial Court and held that the plaintiff is a small farmer but defendant is not a small farmer and hence plaintiff is entitled to the benefits of A.P. Act 7 of 1977 and so the proceedings in the E.P. in execution of the decree obtained by the defendant against the plaintiff are null and void, and decreed the suit. Hence this Second Appeal.
4. Since the relief sought in the suit, in disguise, is for a declaration that the court sale in E.P.No. 7 of 1977 is void, the points for consideration one (i) whether the plaintiff can maintain a suit for declaration of his title to the plaint schedule property or has to file a petition under Section 47 C.P.C for the relief sought and (ii) whether the suit is barred by Res-judicata?
5. The main contention of the learned counsel for the defendant is that the lower appellate court, without keeping in view the effect of the decree in O.S.No.233 of 1980 obtained by the defendant against the plaintiff and others and the fact that plaintiff, having put in appearance in E.P.No. 7 of 1979, did not choose to file a counter and chose to remain ex parte in further proceedings in the E.P. ought to have held against the plaintiff, on the basis that the suit is barred by Res judicata. It is his contention that the fact that the plaintiff was permitted to sue as an indigent person cannot, by itself, be a conclusive factor in finding out whether he was a small farmer with the meaning of the A.P. Act 7 of 1977 by the date of coming into force of that Act. It is his contention that the lower appellate Court's failure to take into consideration the admission of the plaintiff about the gift of Ac.3.00 of wetland by C. Subbamma in his favour resulted in an erroneous finding that is 'small farmer' within the meaning of A.P. Act 7 of 1977 and in any event the suit ought not to have been entertained by the court in view of the Section 47 C.P.C. The contention of the learned counsel for the plaintiff is that the well-reasoned judgment of the first appellate court needs no interference in view of the observations in para 49 of Kasi Viswanatham v. Venkata Subba Rao, 1984 (2) ALT 173 reading:
'Read in combination the preamble and the provisions of Sections 4 and 13, it is manifest that any 'debt' outstanding on the date of the commencement of the Act, shall ipso facto stand discharged and any attempt to file a suit for the recovery of the same will be a futile exercise, as the Civil Courts are forbidden to entertain the same. Now, it is quite conspicuous that a creditor in order to succeed in a suit to recover such a debt, will have to establish that the debt sought to be recovered under the suit is not the one contemplated under the Act, the burden of proof being on the creditor under Section 13. It is immaterial whether the debtor-defendant fails to enter appearance and remains ex parte. In other words, the plaintiff must not only raise the plea that the defendant-debtor is not the 'debtor' within the meaning of the Act, but the plea so raised must be proved to the satisfaction of the court and there should be an adjudication holding that the debt sought to be recovered under the suit is not the one covered by the Act. This inference is irresistible under Section 4 (1), which seeks to discharge the debt notwithstanding the provisions of any law in existence but also any other contract or instrument having the force of law, read conjunctively with Section 13, which casts burden on the creditor to prove that the defendant is not a 'debtor' within the meaning of the Act.'
and emphasizing on the under lined portion in the above observation contended that since the defendant in the E.P. filed by him did not alleged that he is entitled to execute the decree inspite of coming into force of A.P. Act 7 of 1977, or that the Judgment-debtor (plaintiff) is not entitled to the benefits of the said Act, the proceedings in the E.P. do not operate as Res Judicata in this case. It is his contention that as per Section 4(1) of A.P. act 7 of 1977 every debt due from a small farmer stood discharged with effect from the date of commencement of the Act, i.e., 30-12-1976, and since as per Section 4(2)(a) of the said Act 7 of 1977 no Civil Court shall entertain a suit or other proceeding against such debtor for recovery of any debt including the amount of interest, which is deemed to be discharged under Sub-section (1) of Section 4 and since the plaintiff is a small farmer or a 'debtor' within the meaning of that Act, the decree obtained by the defendant against the plaintiff in O.S.No. 54 of 1971 automatically stood discharged and so there was no legal right for the defendant filing E.P.No. 7 of 1979 or the said execution petition being entertained by the Executing Court, and so all the proceedings in the executing court should be deemed to be null and void and non-est, and when the proceedings before the executing Court are null and void and non-est, question of the plaintiff invoking Section 47 C.P.C to set aside such proceedings does not arise and relief on Mahadeo Prasad Singh v. Ram Lochan, : [1981]1SCR732 in support of his contention that Section 47 C.P.C need not be invoked in case of an execution sale is null and void. His next contention is that since plaintiff was permitted to sue as an indigent person that fact clinchingly establishes that he was a small farmer by the date of coming into force of Act 7 of 1977 and so there are no grounds to interfere with the judgment under appeal.
6. In Mahadeo Prasad Singh case, a holder of a money decree passed by a court of Small Causes obtained a transfer of that decree to the court of Munsif at Varanasi for execution, and got attached and brought to sale immovable property of the judgment debtor and purchased the same in the court auction. After confirmation of sale, Sale Certificate was issued on 8-9-1956. The decree-holder/auction purchaser took delivery of the property on 14-3-1957, and later sold a part of it as plots to third parties. After the death of the judgment debtor in 1960, his son instituted a suit on 14-6-1961, i.e., about three years after delivery of possession of the property to the decree-holder/auction purchaser, under Section 229 (b) read with Section 209 of U.P. Zamindari Abolition and Land Reforms Act, in the Revenue Court for a declaration that he is in possession of the land as Bhumidar, or in the alternative for recovery of possession thereof a Bhumidar. The trial court dismissed the suit, inter alia on the ground of constructive res Judicata and also in view of the bar under Section 47 C.P.C. Appeal by the son of judgment debtor to the first appellate court was allowed on the ground that the Executing Court, as per Section 42 C.P.C. as amended by U.P. Civil Laws (Reforms and Amendment) Act 1954 (1954 UP Amendment Act) lacked jurisdiction to sell land and so the suit is not barred by Res Judicata or by Section 47 C.P.C. Second Appeal preferred by the son of the decree-holder/auction purchaser consequent on the death of the decree-holder/auction purchaser was dismissed, confirming the finding of the first appellate court. Questioning the said dismissal the son of the decree holder/auction purchaser and some of the alienees from the auction purchaser filed a Writ Petition under Article 227 of the Constitution in the High Court of Allahabad. A learned Single Judge allowed the said writ petition without going into the question whether the suit is barred by Section 47 C.P.C. and quashed the judgment in Second Appeal on the ground that the executing Court as per Section 42 C.P.C., prior to its amendment by virtue of 1954 UP Amendment Act, had the same powers in relation to execution as it would have had, if the decree had been passed by it itself, and since the decree in that case was passed on 18-2-1953, prior to coming into force of 1954 U.P. Amendment Act, amended Section 42 C.P.C. would not apply to the sale in execution of the decree. Appeal against the said judgment of the learned Single Judge, was referred to a Full Bench. Two Judges of the Full Bench held that the transferee Court will have the same power as the transferor court and since a Small Cause Court has no power to attach and sell immovable property, the court to which the decree, passed by a court of Small Causes, is transferred has no jurisdiction to attach and sell immovable property, and since the right to recover money in execution of a decree relates to procedure and since by the date of attachment, in execution of the decree passed by the Small Causes court, 1954 U.P. Amendment Act already came into force it is the amended Section 42 C.P.C. that would apply to the execution proceedings, and so the attachment and sale of immovable property made by the transferee Court are void. The learned third Judge took a contrary view, when the matter was carried in further appeal to it, the Supreme Court held that 1954 U.P. Amendment Act took away the power of the transferee court to execute the transferred decree by attachment and sale of immovable property, by making its powers co-terminus with that of the transferor court, and in view of the prohibition contained in Order 21 Rule 82 C.P.C., the executing court had no power to execute the decree by sale of immovable property, and therefore sale of immovable property in execution of a decree passed by the court of Small Causes court, was wholly without jurisdiction and was a nullity, and when the sale is totally null and void, the alternative contention that the suit, in view of Section 47 C.P.C. is not maintainable, does not survive. It was also held that since a decree passed by a court without jurisdiction is a nullity, but not irregular or voidable, its invalidity could be canvassed whenever it is sought to be enforced or relied upon, even at the stage of execution also. The ratio in this decision regarding the applicability of Section 47 C.P.C. would apply if the sale in execution of the decree obtained by the defendant against the plaintiff is held to be void or is a nullity.
7. To decide the question whether the sale in E.P.No. 7 of 1979 is void, it is necessary to refer to Section 13 of Act 7 of 1977, which reads as follows:
'In any suit or proceeding, the burden of proving that the debtor is not entitled to the protection of this Act shall, notwithstanding anything in any law for the time being in force, lie on the creditor.'
It is clear from the said Section that the burden is on the creditor to establish that the debtor is not 'entitled to protection' under the A.P. Act 7 of 1977. 'Protection under the Act' is not the same thing as establishing that the 'debtor' is not a 'small farmer' within the meaning of the said Act. Here I may usefully refer to K.V. Rama Reddy v. M. Viswanathatrf, 1993 (3) ALT 170 where a learned Judge of this court while considering the intendment of Section 13 of the A.P. Act 7 of 1977, held that it is the debtor that should first establish, prima facie, that he is a 'debtor' within the meaning of Section 3 (j) of the said Act, and then only the burden would shift to the creditor, under Section 13 of the Act, to establish that the 'debtor' is not entitled to the benefit of the Act. The learned Judge, after considering Kasi Viswanatham case (1 supra) and Kasturi Bai v. Bademia, 1980 (2) ALT 386 where also it was held that the debtor has to first establish that he falls within the definition of 'debtor' and thereafter only the burden shifts to the creditor that he, ie., the debtor, is not entitled to claim the benefit under the Act on one or the other grounds mentioned in the said Act, held that there is no inconsistency in those two decisions. Therefore it is clear that till the plaintiff prima facie establishes that he is a 'debtor' within the meaning of A.P. Act 7 of 1977, the burden to establish that plaintiff is not entitled to the benefit of the said Act 7 of 1977 did not shift to the defendant in E.P-7 of 1977. In Kasi Viswanatham case (1 supra) the Division Bench was considering the question whether a judgment debtor, against whom an ex parte decree was passed, can contend at the stage of execution that he is entitled to protection of A.P. Act 7 of 1977 and held that if there was an adjudication in the suit that the judgment debtor is not a 'debtor' within the meaning of A.P. Act 7 of 1977, he cannot raise that plea again in execution stage, but if it was not so adjudicated he can raise that plea at the stage of execution. That decision did not lay down that the decree passed without determining the question whether the defendant, who remained ex parte, is 'debtor' within the meaning of the A.P. Act 7 of 1977 or not, is a void decree, and cannot be enforced. That decision also did not consider the question whether a Judgment-debtor who chose to remain ex-parte in the execution proceedings and allowed sale of his property by the executing court, can question the sale in a separate suit by contending that he is a 'debtor' within the meaning of the A.P. Act 7 of 1977 and so the sale held by the executing court should be held to be void. The said decision only laid down that a judgment debtor, who remained ex parte at the trial stage, would not be precluded from contending that he is entitled to the benefit of A.P. Act 7 of 1977, at the stage of execution, if that question was not decided either expressly or impliedly at the time of passing of the ex parte decree. It should also be kept in view that, as per the said decision, if the decree holder made an allegation in the plaint that the Judgment-debtor is not a 'debtor' within the meaning the A.P. Act 7 of 1977, and if the judgment-debtor chose to remain ex parte in the suit, he would be precluded from contending that he is a 'debtor' within the meaning of A.P. Act 7 of 1977 at the stage of execution under principle of Constructive Res-judicata. The distinction between a decree being void, and the judgment debtor having a right to raise a plea that the decree should be deemed to have been discharged by establishing he is a 'debtor' within the meaning of A.P. Act 7 of 1977 should be borne in mind for deciding this appeal.
8. From the above it is clear that the question whether a judgment debtor is a 'debtor' within the meaning of A.P. Act 7 of 1977 or not is not a question of law, but is a question of fact. In view of the ratio in K.V. Rama Reddy case (3 supra), unless the judgment debtor, prima facie, establishes that he is a 'debtor' within the meaning of A.P. Act 7 of 1977, the question of the decree holder establishing that the judgment debtor is not entitled to the benefit of A.P. Act 7 of 1977 does not arise. So, plaintiff should have in E.P.No. 7 of 1979 prima facie establish that he is a 'debtor' within the meaning of A.P. Act 7 of 1977. Then only the burden would have shifted to the defendant to establish that plaintiff is not entitled to the benefit of A.P. Act 7 of 1977. The ratio in Mahadeo Prasad Singh case (2 supra), relating to non-applicability of Section 47 C.P.C. cannot be applied to this case, since in that case immovable property was attached and sold in execution of a decree passed by a Small Causes Court, after coming into force of the 1954 U.P. Amendment Act, which in view of the bar contained in Order 21 Rule 82 C.P.C., that a Small Causes Court does not have jurisdiction to bring the immovable property of a judgment-debtor to sale, is ex facie in violation of a statutory mandate. So, it was held that such sale of immovable property is null and void and so judgment-debtor need not take recourse to Section 47 C.P.C. This case is entirely different. Till the plaintiff prima facie establishes that he is a 'debtor' within the meaning of Act 7 of 1977 there was no scope for the executing court presuming that he is entitled to the benefits of A.P. Act 7 of 1977. For reasons known only to him plaintiff having appeared through a counsel in E.P. No. 7 of 1979 chose to remain ex parte, even without filing a counter. He did not file a petition to set aside sale on the ground of fraud. So his contention that defendant fraudulently brought his property to sale cannot be accepted.
9. No doubt Ex.B-1, which is a copy of E.P.No.7 of 1979 in O.S.No. 51 of 1971, does not contain avernment that in as much as the plaintiff (i.e., Judgment debtor in the E.P.) is not a 'debtor' within the meaning of A.P. Act 7 of 1977 defendant (decree-holder therein) can proceed to execute the decree in O.S.No. 54 of 1971. It should not be forgotten that E.P. is neither a suit nor a 'pleading' as defined by Rule 1 of Order VI C.P.C. It, i.e., Execution Petition, need contain only the particulars mentioned in Rule 11 (2) of Order 21 C.P.C. and nothing else. In fact as per Rule 11 (1) of Order 21 C.P.C. and oral application can be made by a decree holder, in a decree for payment of money, at the time of passing of the decree, if the judgment-debtor is within the precincts of the court. So, for him to proceed with execution of a money decree obtained, a decree holder need not specifically mention in the E.P. that the decree sought to be executed by him is not barred under the provisions of Act 7 of 1977 and that the judgment debtor, against whom he is proceeding, is not entitled to the benefits of Act 7 of 1977. In fact it is for the judgment-debtor, who appears before the court in answer to the summons issued in the E.P., to take a plea and prima facie establish that he is 'debtor' within the meaning of A.P. Act 7 of 1977, and then it is for the decree-holder to show as to how and why the judgment debtor is not entitled to the protection under A.P. Act 7 of 1977. As stated earlier since the question whether plaintiff is a 'debtor' or 'small farmer' within the meaning of A.P. Act 7 of 1977 is one of fact, in view of Section 47 C.P.C. Plaintiff cannot maintain a separate suit for deciding the question whether the decree obtained by the defendant against him in O.S.No. 54 of 1971 stood abated after the coming into force of A.P. Act 7 of 1977. At best his remedy was to file a petition under Section 47 C.P.C. only. So the Lower Appellate Court was in error in decreeing a suit, which is not maintainable.
10. Plaintiff who had an opportunity to file his counter in the E.P. claiming the E.P. claiming the benefit of A.P. Act 7 of 1977 did not avail that opportunity in the E.P. He did not even file a petition for setting aside the sale taking a plea that defendant fraudulently brought to sale his property in execution of a decree which stood abated under the provisions of A.P. Act 7 of 1977. At the time of delivery also he had an opportunity to raise a plea that the plaint schedule property cannot be delivered to the defendant (decree-holder/auction purchaser) because the decree against him stood abated by virtue of his being a small farmer or 'debtor' within the meaning of A.P. Act 7 of 1977.
11. Subsequent to his taking possession of the plaint schedule property, defendant filed O.S.No. 233 of 1980 seeking an injunction restraining the plaintiff and his men from interfering with his possession over the plaint schedule property. Plaintiff remained ex parte in that suit and did not even move his little finger and did not take a plea that the plaintiff in that case i.e. defendant in this suit has no valid title to the plaint schedule property or that the court sale made in E.P.No. 7 of 1977 is not binding on him. Though plaintiff had ample opportunity to raise all the contentions, now taken by him in this suit, at several stages in the E.P. and in the earlier suit, he failed to do so. Therefore, he is precluded from raising those pleas by way of a separate suit under the doctrine of Constructive Res Judicata.
12. In view of the above conclusion it is unnecessary to go into the question whether plaintiff is a 'debtor' or 'small farmer' within the meaning of the A.P. Act 7 of 1977 or not in the suit because even if he were so it is of no consequence because he who ought to have raised that plea in the earlier proceedings cannot seek a decision on that issue in this proceedings, as it is barred under the principle of Constructive Res judicata. Therefore, the question whether the order permitting the plaintiff to sue as an indigent person precludes the defendant from the raising plea that plaintiff is not a small farmer or not, would be of no help in deciding this case and so I do not wish to give a finding thereon.
13. For the above reasons I hold that the suit is barred under Section 47 C.P.C and also by Res-judicata and hence is liable to be dismissed. The point is answered accordingly.
14. In the result, the appeal is allowed and O.S.No. 404 of 1982 on the file of the court of Principal District Munsif, Kovur is dismissed, but in the circumstances without costs.