VENKATA SUBBAIAH Vs. KADIYALA SUBBALAH

JUDGEMENT

(1.) The petitioner is the decree holder in O. S. No. 1296 of 1975 on the file of the Additional District Munsif, Ongole while the respondent is the judgment-debtor therein. The suit instituted by the petitioner was decreed by the lower court directing the respondent not to interfere with the flow of rain water from plot 'A' into Plot 'B' as shown in the plaint plan and also directing him, by means of a mandatory injunction to remove the newly formed earth at '9 x 18' on the old bode gatty on X Y line as shown in the plaint plan. While decreeing the suit, the lower court also awarded costs to the petitioner as against the respondent. In execution of the decree for costs, the respondent pleaded that he was a small farmer within the meaning of Act 7 of 1977 and that the decree was inexecutable. It was not denied before the executing court that the respondent was not a small farmer. That the decree for costs obtained by the petitioner against the respondent is a 'debt' within the meaning of Section 3 (i) of the Act was neither disputed before the lower court nor is disputed before me. The lower court having upheld the plea of the respondent, the above Revision Petition is filed.

(2.) Sri P. Kodandaramayya, learned counsel appearing for the petitioner submits that exception (5) to Section 3 (i) of the Act takes away the decree for costs obtained by the petitioner from the definition of 'debt' contained in Section 3 (i) of the Act. I find it difficult to accede to the contention put forward by the learned eounsel It cannot be said that the decree for costs awarded to the petitioner arises out of any tortious liability committed by the respondent, though, it is true that the decrees for injunction granted in favour of the petitioner do arise out of a tortious liability committed by the respondent.

(3.) Reliance is placed upon the decision in Vijjarapu Sarayya Vs, Vinnakota Savitramma where it was held :