RONGALI RAMANA Vs. GOGADA DEMUDU

JUDGEMENT

(1.) This revision arises out of proceedings in execution and the judgment-debtor is the petitioner before this Court.

(2.) The respondent, who obtained a decree against the petitioner in O.S.No. 277/75 on the file of the District Munsif, Chodavaram, applied for its execution by arrest and detention of the petitioner in civil prison. This petition, E.P. 162/76, was opposed by the petitioner on the ground that he is a small farmer within the meaning of the Andhra Pradesh Act 7 of 1977 and that the debt due under the decree should therefore be deemed to have been discharged in full as that decree would abate. The learned District Munsif rejected the petitioner's case that he is a small farmer as defined in Section 3(t) of Act 7 of 1 977 and ordered his arrest. The petitioner thereupon carried the matter in appeal to the Subordinate Judge, Chodavaram. The respondent questioned the maintainability itself of the appeal on the ground that the order sought to be assailed in it is one made under Section 47 of the Code and that since an order made under that Section ceased to be a decree after the amendment of the Code, by CPC. (Amendment) Act 104 of 1976, the remedy of appeal is no longer available to the judgment-debtor. This objection found favour with the Court below and the appeal was accordingly dismissed. Hence this petition for revision by the judgment-debtor.

(3.) No attempt is made by the learned counsel for the petitioner to say that the order of the executing court does not relate to execution, discharge or satisfaction of the decree within the meaning of section 47 CPC. and it is also not in dispute that the appeal against this order was filed several months after the date on which the Civil Procedure Code was amended by Act 104 of 1976. But he contends that the court below erred in dismissing the appeal on the ground that it is not maintainable notwithstanding that execution petition out of which it had arisen was filed prior to the date on which the CPC. (Amendment) Act 104 of 1976 came into force. He adds that since the appeal in question was only a continuation of the execution petition, the maintainability or otherwise thereof should be determined having regard to the date on which the execution petition was filed.