NARAYANA VADIVOO Vs. MOHAMED EBRAHIM

JUDGEMENT

(1.) THE petitioner has filed this revision against the order dt.6-l-1982 in E.A.No.1141 of 1981 in O.S.No.163 of 1974, on the file of the Principal District Munsif, Nagercoil. THE said execution application was filed to discharge the decree debt under Act 13 of 1980. THE case of the petitioner before the lower court is that his annual income is Rs.2,500/- that he has no immovable property worth Rs.25,000/- and that his only residential house is worth Rs.1,800/ Hence, the petitioner claimed benefit of Act 13 of 1980.

(2.) ON the other hand, in the counter filed by the respondent before the lower court it is interalia contended that the petitioner is the 2nd defendant and the 1st defendant is his brother. The 1st defendant filed a similar petition under Act 13 of 1980 and it was dismissed. Subsequently, he paid Rs.200/- and filed petition for adjournment of sale. Now the 2nd defendant has filed this petition in order to drag on the decree-holder from realising the fruits of the decree. The 2nd defendant-petitioner Narayana Vadivu examined himself as P.W.1 and one Ponkathaperumal was also examined on his behalf as P.W.2. Ex.A.1 copy of income certificate, Ex.A-2 another copy of income certificate, Ex.A-3 ration cardEx.A-4Report of the Village Officer and Ex.A-5 copy of pay certificate of Ponkathaperumal, are marked. ON behalf of the respondent one Abdul Rahim (R.W.1) was examined and no document was filed by the respondent. ON the point whether the petitioner is entitled to the benefits of Act 13 of 1980, the lower court found that the petitioner is not entitled to the benefits of Act 13 of 1980, since the income of defendants 1 and 2 comes to Rs.5,500/- and it dismissed the petition.

(3.) IN support of her contention, Miss. O.K. Sridevi, learned counsel for the revision petitioner herein, refers to the decision in Karuppana Thevar v. Karuppiah Thevar, (1982)1 M.L.J.345, for the proposition that the two brothers (judgment- debtors therein) cannot be taken as members of the family in the light of the definition in section 3(e) of the term "family and that with reference to each of the individuals, the earnings of the family will have to be considered and so considered, the finding that the income of each of the brothers will be Rs.3,800/- was not wrong and as the statute discharges the debt in such cases, the execution petition shall not be sustained.