K RAJA REDDY Vs. POTHUKA GANGI REDDY

JUDGEMENT

(1.) The petitioner was sued in O .S. 458/77 on the file of the District Munsifs Court, Kadiri, Anantapur District, for recovery of a sum of Rs. 8,000.00 and odd. That suit was decreed. Now, the petitioner judgment debtor had filed E. A. 107/80 in E. P. 95/77 raising a plea that he was a small farmer and under Act 7 of 1977 the debt owed by him stood fully discharged and that therefore, the decree passed in O. S. 458/77 against him should not be executed. This plea of the petitioner was rejected by the execution court on the ground that the petitioners share in his joint family property was more than five acres and that therefore, the petitioners claim that he was a small farmer was not correct. The execution court mainly relied upon the evidence of the petitioners father who was P. W. 2. P. W. 2 deposed that he was possessing 12 acres of ancestral property and 19 acres of additional properly which was purchased by him. But P. W. 2 deposed that the lands which he had purchased were his self-acquired properly and the debtor had no share in it. But the execution court rejected this part of the evidence of P. W. 2 on the ground that as there was sufficient nucleus of 12 acres of land to purchase the additional extent of land, the property purchased belonged to the joint Hindu family of the petitioner and his father. The execution court held that the petitioners share in the joint family comes to Ac. 15-50 cents of dry land and even if it is notionally divided among himself and his two sons the judgment-debtor would get more than five acres of land to his share and that therefore, the petitioners claim that he was a small farmer, cannot be accepted. Nothing is said in this revision petition to show that the above finding of fact was made by the execution court without jurisdiction or was hit by any element of illegality. Those findings alone are sufficient to justify a dismissal of this revision petition.

(2.) Additionally, however, I think that this revision petition has to fail on the ground that the present plea which the petitioner has taken in the execution petition that he was a small farmer is not available for him for being raised for the first time in execution of a decree passed by a competent court. The suit was filed some time in the year 1977. Admittedly before it was decreed the Andhra Pradesh. Agricultural Indebtedness (Relief) Act, 1977 (hereinafter referred to as "the Act") had come into force. It was clearly open for the defendant-debtor to content in the suit that he was a small farmer and that therefore, he was entitled for the benefit of S. 4 of that Act S. 4(1) of the Act declares that

(3.) The defendant had a chance to plead and prove that he was a small farmer in the suit. The suit in this case was decreed after the Act had come into force. If the suit had been decreed before the Act had come into force clearly constructive res judicata would not have applied. It would have been then possible for the debtor to raise in execution the plea of a small farmer u/s. 4 (2) (a) of the Act, because constructive res judicata would not have operated against him. But, where the suit was decreed subsequent to the coming into force of the Act and the debtor had a chance, but never raised such a plea, it shall not be open for the small former to raise that plea in execution. Normally, no collateral attacks should be permitted on the decree which had been passed after hearing both the parties. Where the statute expressly says otherwise, subject to constitutional mandate, it would be otherwise. The meaning of the Act in this connection should be gathered from its provisions as well as those of the Civil P.C. and more particularly S. 11. In the case of a decree passed before the Act came into force, Explanation IV to Sec. 11 of Civil P.C. would not debar the debtor from raising a plea that he was a small farmer in execution because on the day when the suit was decreed such a pleas was not available to the debtor. The doctrine of ought-and-might cannot, therefore, be applied to. As this is a suit decreed after the commencement of the Act. I hold that the doctrine of constructive res judicata would fully apply to the petitioner.