A. VENKATARAMI REDDY, J.

( 1 ) THE Civil Revision Petition is posted before the Division Bench as our brother, Ramanujulu Naidu felt that the question whether the debtor is obliged not only to establish that he is a small farmer within the meaning of Act 7/77 on the date when the Act came into force but also to establish that he continues to be a small farmer when he raised the plea claiming the benefits under the Act?" is of far reaching importance and requires to be decided by a Division Bench.

( 2 ) THE facts that gave rise to the aforesaid question may be stated briefly : from Gandam Obula Setty, the respondent herein borrowed a sum of Rs. 2,000/- and executed a promissory note on 5. 7. 76 in his favour. The defendant made part payments of Rs. 360/- on 5-7-77 and Rs. 360/- on 5. 7. 78 which were endorsed on the promissory note. The petitioner herein claiming to be a legatee under the registered will dated. 7-4-1972 of Gandham obula Setty, filed the suit for recovery of rs. 2112. 90ps. being the balance of principal and interest due on the suit promissory note. The plaintiff claimed interest at the statutory rate as the defendant was an agriculturist.

( 3 ) THE defence set up by the respondent herein was that 20 days subsequent to 5. 7. 78 he paid the entire amount due to Gandam Obul Setty towards the full discharge of the suit promissory note. That the suit is not maintainable as Succession certificate was not filed and that he was having only Ac. 8. 30 cts. of dry land and had two sons, aged 20 and 19 years, and therefore he was a small farmer entitled to the benefits of Act 7/77. Hence he prayed that the suit may be dismissed.

( 4 ) ON the aforesaid pleadings. the trial Court framed three issues. They are. 1) Whether the suit debt was discharged by payment to the original promisee? 2) Whether the suit is not maintainable for want of Succession Certificate? 3) Whether the suit debt abates, the defendant being a small farmer as per the provisions of Act 7/77?

( 5 ) ON issue no. 1 the trial Court found that the suit debt was not discharged by payment of the amount to the original promisee Gandam Obul Setty. On issue no. 2 it held that the suit was maintainable without production of the Succession certificate. On issue no. 3 it found that the joint family of the defendant consisting of himself and his two sons own Ac. 12. 43 cts. of dry land and although the defendant was a small fanner on the date of the commencement of Act 7/77, he ceased to be so by the date of the filing of the written statement, as one of his sons died, and as the debtor to claim the benefits of act 7/77, he should be a small farmer not only at the commencement of the Act but also on the date on which the petition was filed. In support of the aforesaid conclusion, he relied upon the decision rendered by Justice Muktadar in Ch. Ramakrishna prasad vs. Sri Raja Vasi Reddy Raja Lakshmamma bahadurini (1) 1980 (1) APLJ. Page 273 and accordingly decreed the suit.

( 6 ) IN the appeal, A S No. 75/82, preferred by the defendant the only question argued was Whether the defendant-appellant was a small farmer entitled to the benefits of Act 7/77. The lower appellate Court held that the defendant and his sons own ac. 12. 43cts. of dry land and as on the date of the commencement of the Act, the defendant had two sons, hence he was a small farmer. Relying on the division bench decision in Abdul Aziz V. Golla bhumavva (2) 1982 (1) APLJ, Page 379. the lower appellate Court held that the defendant was a small farmer on the date of the commencement of the Act, i. e. 29-12-1976 and that any other date was not relevant and hence he was entitled to the benefits of Act 7/77.

( 7 ) AGGRIEVED by the same, the plaintiff preferred this Civil Revision petition.

( 8 ) IT is not in dispute that the defendant was a small farmer on the date when the Act came into force. On account of the subsequent death of one of his sons ho ceased to be a small farmer on the date of the filing o

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