G. Nagaraja Rao vs Siva Reddy and Others

P.S. Narayana, J.—Heard both the counsel.

Sri T.V.S. Kumar, learned counsel representing Sri Kalyan Ram, counsel for the revision petitioner - decree holder had made elaborate submissions stating that the real family of Siva Reddy had large extent of land and even if the branch of Siva Reddy- judgment debtor is taken into consideration, the family owns an extent of Ac.26.69 cents and Ac.12.05 cents and the aspect who are minors or majors at the relevant time had not been decided and further the debt as such is a family debt or individual debt also had not been adverted to. The learned counsel also contended that though the revision petitioner - decree holder discharged his burden, in fact, the judgment debtor has not discharged his burden and even otherwise the suit being O.S. No. 50 of 1962, a very old suit and the amount borrowed relating to a business transaction it does not fall within the meaning of the debt of A.P. Agricultural Indebtedness (Relief) Act (Act 7 of 1977) (hereinafter referred to as ''The Act''). The learned counsel has drawn my attention to the different provisions of the Act. The learned counsel also had contended that at any rate the Act has no application to the debts prior to coming into force of the Act. The learned counsel also further contended that the question that in view of Order 21 Rule 16 of the Code Civil Procedure (C.P.C.), the execution petition itself is not maintainable was neither raised nor argued before the executing Court and for the first time the judgment debtor cannot be permitted to raise that question. The learned counsel also stated that in view of Ex.A.1, it is clear that the decree had been transferred and hence the revision petitioner has a legal right to enforce the decree. The learned counsel had also drawn my attention to Ex.A.1 transfer deed, Ex.A.2 xerox copy of compromise decree and judgment in O.s. No. 5 of 1976 on the file of the Subordinate Judge, Anantapur, Ex.A.3 certified copy of registered sale deed and Ex.A.4 dated 10.4.1975, copy of declaration (Form No. 1) given by R. Venkata Siva Reddy under A.P. State Land Reforms Tribunal Act. The learned counsel had also contended that the additional non-agricultural income spoken to by P.W.2 had not been considered at all by the Court below. The learned counsel for the revision petitioner-decree holder also had placed reliance on several decisions like GEORGE v. SAMBAMURTHY 1984(2) ALT 19, Eswara Kumars Traders Vs. B. Venkatadri Naidu, ; Gollareddigari Golla Reddy Vs. Mallepalli Adinarayana Reddy, ; SURYANARAYANA v. VEERAYYA 1985(1) ALT 316; T.RAMBABU v. V. RAMAVATHI 1988(1)ALT987; SHAIK KHAJA HUSSAIN v. JAHIRA BI 1988(2)ALT 457; V.VEERABHADRA RAO v. G. MAVULAMMA 1988(2)ALT 349 and Chintha Savitramma Vs. Buddaraju Sivakumari Devi, .

Sri Lakshminarasimham representing Sri V.V. Narasimham, learned counsel for the respondents had raised a preliminary objection that the revision petitioner - decree holder being a non-party to the suit, being a stranger, cannot maintain the execution petition at all in view of the provisions of Order 21 Rule 16 read with Order 21 Rule 10 C.P.C. Even otherwise the procedure contemplated under the provisions of C.P.C. is not followed. The learned also had contended that in the light of evidence of R.W.1 and R.W.2 and also Ex.B.1 it is clear that the judgment debtor is a small farmer and since it is only an individual debt, the holding of the individual debtor only should be computed to see whether the Act is applicable or not. The learned counsel also had drawn my attention to the finding of the Court below and had submitted that the finding with regard to the computation is a finding of fact recorded by the Court below which cannot be disturbed in revision. The learned counsel also placed reliance on Karri Venkata Rama Reddy Vs. Megalapu Viswanatham, ; K.N.V.S.N. BABJI v. K. SURAMMA 1984(2)ALT 119; P. Varahalamma Vs. Repeti Ramanna and Others, ; KRISHNA MURTHY v. GOVERNMENT OF A.P. AIR 1979 AP 145 and CHINTA SAVITRAMMA case (8 supra).

The Court below at para 13 of the impugned order had observed as follows:

"According to the J.Dr. the evidence of J.Dr. is as to that J.D.R. is having 5 sons and 2 daughters which are admitted facts. Accordingly if the said 8 acres 87 cents land was divided in between the J.Dr. and his 5 sons each will get 1/6th share in out of 8 acres and 87 cents which could be 1 acre 48 cents even by computation the extent shown in the E.P. schedule including in Survey No. 13/13. The entire family property said to have been allotted in between the J.Dr. and his 3 brothers could be 38 acres and 66 cents which was divided in between 3 members. J.Dr. and his two brothers could secure only to the extent of 12 acres and 88 cents was divided in between the J.Dr. and his 5 sons notionally the J.Dr. to the extent of the landed property owned by J.Dr. is less than 2 acres, 50 cents. Even if the property comes under Ex.B.1 could be the same as to the extent of the landed property owned by J.Dr. will be 3 acres and 47 cents and when computation of 18 cents of well irrigated land as wet land. On computation the entire landed property said to have been owned and possession by the J.Dr. could be only 3 acres 65 cents"

At par 15 again the Court below had observed :

"Admittedly when the J.Dr. is having 5 sons, the said property have to be nearly divided to in between J.Dr. and his 5 sons in computation of the extent of the landed property owned and possession by the J.Dr. could be around 3 acres. Pattadar pass book issued by the Government of Andhra Pradesh has to be taken into consideration to show with regard to the actual extent of the landed property owned by any individual as so on the basis of the material evidence available on records it categorically reveals as to that the J.Dr. is a small farmer and he is entitled to the benefits of the Act 45/87"

In the course of the discussion of the impugned order it is clear that the original family of Siva Reddy held a large extent of land and Siva Reddy family also is owning a large extent of land. But the finding of the court below is that in view of computation of the share the extent falls below the prescribed limit under the Act. This is the question where there appears to be serious controversy between the parties.

In CHINTA SAVITRAMMA case (8 supra), in fact, a Full Bench of this Court dealing with several aspects of the Act had clearly laid down that it is also necessary to decide whether a debt claimed is a family debt or individual debt and if it is a family debt, the computation of the family as such shall be taken into consideration for the purpose of deciding whether the judgment debtor is a small farmer or not. It is pertinent to note that the suit itself is a very old one and decree was passed long back and the parties have been fighting the litigation very seriously. It is also pertinent to note that in the judgment in O.S. No. 50 of 1962 on the file of the Subordinate Judge, Anantapur at para 34 it was observed as follows:

"The next comment made by the learned advocate for the defendant is that the plaintiff''s evidence that the defendant was doing business and needed money for the business is not corroborated. D.W.3, Sivaramireddy, while denying the suggestion that the defendant does business in groundnuts, says that he and the defendant collect groundnuts from ryots and sell them on behalf of the ryots and pay money to the ryots and that they note in their books the details with regard to the quantity received from the ryots and the amount realized by the sales. I do not think that D.W.3 and the defendant would have been so altruistic as to undertake all that labour on behalf of the ryots in their village without seeking any profit for themselves. It is more probable that they were running a business in groundnut. I find in the telltale admission of D.W.3 is sufficient support to the plaintiff''s statement that the defendant was carrying on business in groundnuts"

Apart from all these aspects though the question of maintainability of the execution petition was not raised in the executing Court, for the first time the judgment debtor is permitted to raise that question being a pure question of law and inasmuch as the facts are not in dispute. It is no doubt true that Ex.A.1 was marked. However, this question, more so, requires to be gone apart from all these questions. In the light of several aspects involved in the matter, since the Court below had not applied its mind to all the facets of the matter and had not decided the matter in proper perspective, I am inclined to set aside the impugned order and remand the matter back to decide the matter afresh after giving an opportunity to both the parties to let in further evidence, if any and if they choose to do so and also decide all the questions and contentions raised by the respective parties.

The C.R.P. is allowed to the extent indicated above. In the circumstances of the case, no order as to costs.