THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2563 OF 1993 JUDGMENT: The appeal is filed against the order in I.A.No.347 of 1989 in O.S.No.246 of 1983 on the file of the Subordinate Judge, Nellore passing a final decree in pursuance of a preliminary decree for redemption of mortgage. The appellants herein are the defendants, who filed the objection for passing of the final decree contending that they are the small farmers within the meaning of the Act 45 of 1987 and consequently they are not liable to pay the decretal amount. The lower Court did not accept the contention and, therefore, passed the final decree. Aggrieved by the said order dated 01.02.1993, the present appeal is filed. The point for consideration is whether the appellants are small farmers and the debt has paid? POINT: According to the case of the appellants, the respondents are owning only Ac.4-60 cents of dry land and basing on sale deeds relied upon a reference of R.W.2 is also relied upon to prove the correctness of Exs.B-1 and B-2. The lower Court found that the scrutiny was not taken when the suit was pending and, therefore, the claim is not tenable. Evidently, the Act 45 of 1987 was an extension of the Act 7 of 1977 and the date of mortgage in this case is 07.12.1983 and the suit was instituted in 1983 and, therefore, by the date of institution of the suit the plea under Act 7 of 1977 or Act 45 of 1987 are not open. But, however, the fact remains the preliminary decree was passed on 29.10.1987 and the Act 45 of 1987 is said to have given effect from 30th December, 1987. Therefore, the failure to take the objections at the earlier point of time cannot be a ground to reject the claim of the appellants. The contention of the decree holder is that the appellants were doing charcoal business since last 20 years and he was also doing lemon business and earning Rs.10,000/- per month. Evidently, the documents Exs.B-1 and B-2 prima facie show the extent of the land owned by the appellants. Now the question is whether the above claim is disbelievable to extend the protection under the Act 45 of 1987. The evidence of P.W.1, who is the partner of the decree holder-firm in chief examination shows that the 1st respondent was doing business in exporting charcoal to Madras and was getting an income of Rs.7,000/- to Rs.8,000/- per month. In the cross-examination it was suggested to him that the defendants offered his willingness about ten years back and it was also suggested to him that the amount was also borrowed for his business. In this case, the evidence of R.W.1 in the cross-examination clearly goes to show that he was doing business in firewood and charcoal since 20 years. He claims to have borrowed the amount of Rs.15,000/- from the plaintiff for raising the lemon garden. He claims that there are all 166 lemon trees and getting Rs.10,000/- per annum by selling lemons. Assuming to be that the income cannot be taken into consideration, the fact remains that he owned admission of R.W.1, who is the 1st respondent, who was doing business in firewood and charcoal since 20 years and his statement does not show that he has stopped the business and the time when he has stopped it. Therefore, in view of the above circumstances, apart from the agricultural income, the 1st respondent has got other income from the business and consequently the plea of the benefits of Act 45 of 1987 cannot be granted to the 1st respondent. So far as the 2nd respondent is concerned, he has not gone into box to claim the benefit. Therefore, in view of the above circumstances, I do not find any merits in the appeal. Accordingly, the appeal suit is dismissed. No costs. ________________________ N.R.L.NAGESWARA RAO, J 20-10-2011 MR THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO APPEAL SUIT NO.2563 OF 1993 Date: 20-10-2011 MR