UMMADISINGU RANGANAYAKAMMA Vs. MOTHEY VENKATA SUBBA RAO

JUDGEMENT

(1.) The decree holder is revision petitioner and the respondent is the judgment debtor.

(2.) The petitioner had obtained a decree on 7-12-1971 against the judgment debtor for money in S.C.No. 10 of 1971 on the file of the Court of the subordinate Judge, Eluru. He filed E.P.No. 33/1972 for recovery of the decretal amount of Rs. 385-32 and also decree costs of Rs. 58-55 by arrest and detention of the respondent in civil prison. This mode of execution, permitted by Section 5 I of the Civil Procedure Code was sought on the ground that the respondent owns lands and a house in Eluru and Kovvli and that he possessed the means to pay the decree amount, but neglected to pay. The respondent filed a counter contending inter alia that he was sick that a sum of Rs.99-70 which he paid towards Municipal taxes on account of the petitioner should be given credit to and that he being an erstwhile landholder, he was not liable to arrest under Section 58-A of the Andhra Pradesh (Andhra Area) Estates (Abolition and Conversion into Ryotwari) Act, 1948 (hereinafter referred to as 'the Act'), The executing court had framed three points for determination. Under the first point, whether the judgment-debtor paid any Municipal taxes on the site for the half-year ending 31-3-11971 and would that payment was liable to be adjusted in the amount claimed in the execution petition, the court held that there was no proof of any such payment and that therefore there was no question of adjustinig and Municipal tax towards the amount claimed in the execution petition. On the second point, whether the judgment-debtor was sick it was held that the respondent had not established the same and that therefore he could not claim exemption from arrest on that ground. On the question whether the respondent being a landholder was immune from arrest by reason of section 58-A and Section 59 of the Act the court held chat this judgment-debtor was not liable for arrest. Relying upon a decision of this court reported in Seetharama Rao v. Raja Kumar (I) A. I. R. 1961 A.P. 399, the court beiow held the: a landholder was immune from arrest in execution at all stages whether before or after the payment of the final compensation and that the decree could be executed only by one of the modes prescribed under Section 59 of the Act and that is only against the properties of the judgment debtor or against the compensation deposited. It is also found by the executing court that it was not the respondent's plea that he has no means to pay and also found on the evidence in the case that the respondent has the means to pay since the date of the decree, but had neglected to pay.

(3.) in the result, the court below dismissed the execution petition. Aggrieved by that order, the petitioner has come up In revision and challenges the correctness of the order of the lower court.