D RAMALINGA REDDY Vs. T MASTHAN REDDY

JUDGEMENT

(1.) This Civil Revision Petition is at the instance of the decree-holder arising under Act 7 of 1977. In the course of the execution of the decree the judgment-debtor resisted the execution on the ground that he is a small farmer and he is entitled to the benefits of Act 7 of 1977 and though the holding originally was more than the prescribed limit a son was born on 24-6-1978 and a notional partition has to be effected construing that it is a joint family property. The court below having found that it is a joint family property held that on the basis of the notional partition, the share that can be allotted to the debtor will come within the permissible limit envisaged under the Act.

(2.) The learned counsel for the petitioner raised two-fold contention viz., that the decree was already passed and as such the plea of the judgment debtor is barred by resjudicate and the birth of a son after the Act came into force and after the debt was contracted cannot be taken into consideration for the purpose of notional partition. The learned counsel for the respondent sought to sustain the order contending that the plea is not barred by resjudicate and cited the decision of the Division Bench in CRP No. 3361 of 1982 dated 23-9-83 Kadiyala Kasivis- wanadham vs. Atluri Venkata Subbarao (1)1983 (2) APLJ 33 Shortnotes. and the birth of a son subsequent to the commencement of the Act or incurring of a debt does not alter the situation. In the plaint it was specifically pleaded by the plaintiff that the debtor is not a 'small farmer. Despite the specific plea, the defendant did not choose to deny the averment or invite the court for framing an issue. Therefore, the suit was decreed as the defendant did not raise any demur to the claim of the plaintiff in this regard. The Division Bench decision, strongly relied upon by the learned counsel for the petitioner, is concerned with the passing of an exparte decree and whether there is resjudicate or constructive resjudicate. The Division Bench held that where a decree ie obtained exparte the question of resjudicate does not arise in the absence of any plea or issue or finding. The facts and circumstances in the instant case does not squarely fall within the decision of the Division Bench. In this case, a specific plea was taken in the plaint that the defendant is not a small farmer an the defendant contested the suit but did not advert to this plea of the plaintiff in the written statement and did not also invite the court to frame the issue in this regard. The suit was decreed without any demur from the defendant. The defendant is obligated to deny the plea of the plaintiff or raise a plea or insist upon the framing of the issue to trigger off controversy to absolve himself from the liability as a small farmer within the purview of Act 7 of 1977. It is incontrovertible that where the defendant expressly admits the averment of the plaintiff the framing of issue is superfluous and the finding need not follow and the conclusion thereon operates as resjudicate. Afortiorari when the defendant stands by without denying the allegations of the plaintiff and does not choose to move in the matter by transforming the averments and allegations into contentious issues the decree thereon operates as resjudicate. Therefore, the decision of the Division Bench in CRP No. 3361 of 1982 dated 23-9-83 is not applicable to the fact and circumstances of the instant case.

(3.) In this view, the other aspect relating to the joint family and notional partition need not be considered.