CHIRUMAMILLA RAMAKRISHNA PRASAD Vs. RAJA VASIREDDY RAJYALAKSHMMA BAHADURINI

JUDGEMENT

(1.) The legal representatives of the original judgment-debtor who died on 3-8-1976 have preferred this revision against the judgment of the Subordinate Judge, Machilipatnam passed in E P. 73 of 1977 dated 20th March, 1979. The decree-holder, respondent herein filed the E P., against the legal representatives of the original judgment-debtor for attachment of some property mentioned in the Schedule to the E. P. The legal representatives of the Original judgment-debtor filed counter stating categorically that the original judgment-debtot was a small farmer and had no land more than one hectare on the date of passing of Act VII of 1977 and, therefore, the decree has to be discharged. So far as the attachment of property is concerned, they specifically stated in paragraph 5 "these respondents reserve their right to file detailed objection if notice of E P. is received by them". This will be found in the counter filed by the Advocate for Respondents 1 and 2. So far as the other respondents are concerned, it has not been brought to my notice as to what their counter was. Be that as it may, the lower Court proceeded to decide two points; (i) whether the decree debt owned by the deceased judgment-debtor stood abated under Act VII of 1977 ? (ii) if not, whether the property mentioned in the E P., schedule is liable to be proceeded against in the E P. The learned Subordinate Judge decided both these points against the legal representatives of the original judgment-debtor and in favour of the decree- holder and passed orders to proceed against the property mentioned in the E P. Hence, this revision.

(2.) In the first instance, Mr. N.V.B. Shanker Rao, the learned advocate appearing on behalf of the respondents contends that this revision is not maintainable because, according to him, this judgment was passed under Order XXI, Rule 58 of the Code of Civil Procedure and, there fore, having regard to the provisions of the said Order, the party ought to have preferred an appeal. On the other hand Mr. M. Jagannadha Rao, the learned advocate appearing on behalf of the petitioners, contends that the learned Subordinate judge has decided the point as to whether the original judgment-debtor, who is the father of the petitioners, was a small farmer or not. For this, the only remedy open to the petitioners is to file a revision. So far as the aspect of attachment of the property is concerned Mr. Jagannadha Rao states that attachment has not yet taken place and that matter has to be dealt with later on by the lower court and that there after only the petitioners would be able to file an appeal. In my opinion, having regard to the circumstances of the case and the fact that the lowercourt has in detail discussed the aspect as to whether the original judgment debtor was a small farmer or not, or, even the present petitioners were small farmers or, not, therefore this is a matter against which only revision is preferable and not an appeal.

(3.) Secondly, it is evident from the counter mentioned herein above and also from the wording used by the lower court, that no enquiry seems to have taken place with regard to the fact as to whether this property belongs to the original judgment debtor or not and it appears from the entire order of the lower Court that the main stress of the parties was with regard to the fact as to whether the original judgment-debtor or his legal representatives was/were small farmers or not. Therefore, in these circumstances, to my mind, the revision is maintainable.