JUDGEMENT
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(1.)This writ petition under
Article 226 of the Constitution of India is
directed against the orders dated 9-3-2004
passed by the District Judge, Deoria, in Civil
Revision No. Nil of 2004 and the order dated
5-2-2004 passed by Civil Judge (Senior Division)
in Misc. Execution Case No. 104 of
2003 and further relief of striking off the
Execution Case in 25 of 1985. The facts
leading to filing of the writ petition are as
under :
(2.)The petitioner's father late Ganga
Mishra took a loan of Rs. 1350/- from respondent
in the year 1974. As the loan was
not repaid, the respondent filed a suit being
Suit No. 67 of 1978 in the Court of Judge
Small Causes for the recovery of Rs. 1350/-
against the petitioner's father late Ganga
Mishra which was decreed on 25-7-1979. A
revision was filed by Ganga Mishra against
the said decree dated 25-7-1979 under Section
25 of the Provincial Small Cause Courts
Act, 1887, which was also dismissed on 27-2-1980.
The respondent-decree holder put
the decree to execution. Before the executing
Court the judgment debtor, petitioner's
father filed objection under Order XXI, Rule
37 read with Section 47 of the Code of Civil
Procedure that the decree cannot be executed.
The executing Court dismissed the
objection filed by the judgment-debtor. The
process of litigation went on and after the
revision filed by the judgment-debtor,
petitioner's father was dismissed he filed a
writ petition before this Court being Writ
Petition No. 7836 of 1981 which was also
dismissed by this Court. The executing
Court proceeded with the matter. Before the
executing Court, now the judgment debtor
who has been substituted by the present
petitioner, filed objection under Order XXI,
Rule 66 of the Code of Civil Procedure on
the ground of procedural defects and also
on the ground that the provisions of Order
XXI, Rule 54 and 66 of the Code of Civil Procedure
have not been complied with. The
executing Court by the order dated 20-8-
1994 rejected the objection of the judgment
debtor under Order XXI, Rule 66. Thereafter
the property was put to auction on 8-7-1995
but auction could not take place and
when the petitioner came to know of the
auction fixed for 8-7-1995, he filed objection
under Order XXI, Rule 90 read with Section
151 of the Code of Civil Procedure on
14-8-1995 along with an application under
Section 5 of Indian Limitation Act for condonation
of delay, if any, in filing the objection.
This objection along with delay condonation
application was registered as Misc.
Case No. 165 of 1995. The executing Court
after hearing the parties allowed the application
filed by the judgment debtor for condonation
of delay in filing the objection under
Order XXI, Rule 90 of the Code of Civil
Procedure. Against the order allowing the
application for condonation of delay a revision
was filed being Civil Revision No. 43 of
1996 by the respondent decree holder which
was allowed by the Court of V Additional
District Judge, Deoria by the order dated
17-1-2000. Against the aforesaid judgment
the petitioner judgment debtor filed writ
petition being Writ Petition No. 17280 of
2000 before this Court which was dismissed
by this Court on 3-5-2000. Thereafter the
judgment debtor filed objection under Section
47 of the Code of Civil Procedure which
was registered as Misc. Case No. 104 of
2003. The objection was regarding the alleged
procedural defects in the execution.
These objections were dismissed by the executing
Court on 5-2-2004 aggrieved by the
order of rejection the judgment debtor preferred
a revision being Civil Revision No. Nil
of 2004 which was summarily dismissed on
9-3-2004. Thus, this writ petition.
(3.)Learned counsel for the petitioner has
argued that in view of the provisions of the
U. P. Debt Relief Act, 1977, since the petitioner
is covered by the definition of "small
farmer", the decree against the petitioner
cannot be passed and decree being null and
void, cannot be executed against the petitioner.
From the perusal of the provisions of
the U. P. Debt Relief Act, 1977 (in short The
Act') it is clear that the definition of "small
farmer" is given, under Section 2(11) of the
said Act which is reproduced below:
"(11) "small farmer" means a person residing
in a village who, on the date of commencement
of this Act, hold unirrigated land
exceeding one hectare but not exceeding two
hectares, and whose principal source of livelihood
is income from agricultural land or
by manual labour on such land and includes
a person cultivating land as an asami or as
share cropper".
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