S.C. Mohapatra, J.
1. Decree-holder is the petitioner in this civil revision assailing the order of the executing Court in which it found that the execution case has abated Under Section 3 of the Orissa Debt Relief Act, 1980 (In short 'the Act').
2. On the basis of a hand note dated 2-11-1964 executed by the opposite party, petitioner filed Money Suit No. 126 of 1971 on 1-5-1971 which was decreed on 18-3-1972 with costs. Execution Case No. 47 of 1972 was filed on 24-7-1972 for realisation of the decretal amount of Rs. 4,249.15 paise and costs of Rs. 808.95 paise decreed with future interest. While the execution case was, pending, opposite party filed an application for permission to pay the decretal dues by instalments as provided Under Section 13 of the Orissa Money-Lenders Act, which was allowed on 9-1-1973.
In the said petition opposite party claimed his only source of income to be agriculture from about 3 acres of land belonging to him and some land taken on bhag basis. The first instalment of Rs. 800/-was paid and thereafter Rs. 1525/-were paid in doses till 26-9-1975. On 10-1-1975, the judgment-debtor filed an application for keeping the decree in moratorium Under Section 12 as provided in the Orissa Money-Lenders (Amendment) Ordinance, 1975. In the said petition the judgment-debtor disclosed his only source of income to be agriculture and his ownership over 2 acres 10 decimals and 3 biswas of land. The execution case continued to remain stayed till 23-9-1981.
On 13-3-1981 the Act came into force at once being published in the official gazette and Section 12 of the Orissa Money-Lenders (Amendment) Act was repealed. On that basis the opposite party filed an application on 21-10-1981 for an order of abatement of the execution case as provided Under Section 3 of the Act, In the said petition the judgment-debtor-opposite party disclosed that he is possessed of 2 acres 18 decimals of land which is less than one standard acre and as such he is a small farmer. The executing Court having held that the judgment-debtor is a small farmer passed the impugned order on 6-8-1983, after considering the evidence of the judgment-debtor as P. W. 1 and three witnesses examined on behalf of the decree-holder.
3. Mr. B H. Mohanty, the learned counsel appearing for the decree-holder-petitioner, submitted that the requirements of Section 3 would not be satisfied on appreciation of the oral evidence on the record and in any case the executing Court has not taken into consideration the pre-requisites for attracting Section 3 of the Act. It is not in dispute . that the execution case would abate Under Section 3(1)(c) of the Act.
4. Section 3(1)(c) of the Act reads as follows :
'3. Discharge of debt by scheduled debtors and consequences of such discharge-
(i) Notwithstanding anything contained in any other law for the time being in force or in any contract or other instrument having force of law by virtue of any such law, and save as otherwise expressly provided by Section 5, every debt incurred by a scheduled debtor before the commencement of this Act including the amount of interest, if any, payable on such debt shall be deemed to have been wholly discharged and__
(a) and (b).........
(c) all suits and proceedings (including appeals, revisions, proceedings in execution and attachment), pending on the date of commencement of this Act for the recovery of any such debt or interest due thereon against a scheduled debtor shall abate :
Provided that where a suit or proceeding is pending jointly against a scheduled debtor and any other person it shall not abate in so far as the claim against such other person is concerned :
Provided further that if a sale in an execution proceeding against a scheduled debtor has been confirmed before the commencement of this Act, a proceeding to give effect to the sale shall be neither barred nor shall it abate.
(d) and (e).........
(2)... .....................'.
From the above it is, clear that the execution proceeding pending on the date of commencement of the Act for recovery of any debt and interest accrued thereon against a scheduled debtor would abate.
5. 'Scheduled debtor' has been defined Under Section 2(h) of the Act whereunder the ordinary residents of Orissa of three categories would come within the definition. They are small farmer, rural artisan and agricultural labourer.
The opposite party filed an application claiming himself to be a small farmer. 'Small farmer' has been defined Under Section 2(i) of the Act to mean a farmer who owns not more than one standard acre of land and whose principal source of income is agriculture or any allied occupation. 'Standard acre' as defined Under Section 2(30) of the Orissa Land Reforms Act has been adopted for the purpose of this Act.
6. In a decision reported in 1965(I) OLR 167 (Yernagula Kamaraju and Ors. v. Manda Dandasi), I have held that the Act is a benevolent legislation to give relief to the scheduled debtors. Therefore, a scheduled debtor is required to satisfy the pre-conditions to get the relief Under Section 3 of the Act and the Court is to carefully scrutinise if the pre-conditions thereof are satisfied.
7. In this case the matter has not been examined by the executing Court in its right perspective. It has not been examined whether the proceeding in execution is in respect of a debt. A debt has been defined to be the liability to the money-lender under a decree or order of a civil Court. Therefore, as has been held in a decision of this Court reported in * 62(1986) CLT 214 (Janardan Misra v. Sidha Bal) the executing Court ought to have given a finding whether the decretal amount is a debt or in other words, whether the decree-holder-petitioner is a money-lender. In this case the area disclosed by the opposite party is more than one acre. One acre of class I land would be one standard acre. In order to prove that the land possessed by the judgment-debtor-opposite party is less than one standard acre, he is required to prove the class of land. He has only led evidence in this case and no document has been filed. The executing Court has also not given a clear finding with reference to Section 2.{30) of the Orissa Land Reforros Act if the land owned by the judgment-debtor opposite party is less than one standard acre.
8. Lack of appreciation of pre requisites for attracting the protection Under Section 3 of the Act would amount to exercise of jurisdiction with material irregularity. Accordingly, the impugned order is set aside The matter is remitted back to the executing Court for giving opportunity to the parties to adduce evidence in the light of the requirements of Section 3(1)(c) of the Act.
9. In the result, the civil revision is allowed. There shall be no order for costs in this revision. Both parties are directed to appear before the executing Court on 27th October, 1986 (Monday) on which date the executing Court shall fix a date of hearing on the question of abatement of the executing case.