G GOLLA REDDY Vs. M ADINARAYANA REDDY

JUDGEMENT

(1.) The short but interesting question which arises for decision in this C.R.P. is whether land held under an agreement of sale by the wife of the judgment- debtor can be computed in his holding to decide whether he is a small farmer within the meaning of A.P.Act 45 of 1987 read with A.P. Act 7 of 1977. Before considering the said question, it is necessrary to briefly state the facts of the case.

(2.) The respondent herein obtained a simple money decree against the petitioner herein in O.S.No.94 of 1986 on the file of the court of the Principal District Munsif, Kadiri. In execution of the said decree, the respondent filed E.P.No.165 of 1987 for arrest and detention of the petitioner/judgment-debtor in civil prison. The petitioner/judgment-debtor filed a counter opposing the said E.P. inter alia on the ground that he is a small farmer entitled to the protection of A.P.Act 45 of 1987 read with A.P. Act 7 of 1977 and hence the decree debt must be deemed to be wholly discharged by operation of the provisions of the said Act. The decree-holder/respondent disputed the claim of the judgment-debtor that he is a small farmer. Both sides have let in oral and documentary evidence. On a consideration of the evidence, the executing Court negatived the claim of the judgment-debtor that he is small farmer and order his arrest and detention in civil prison by its order dated 4-6-1990. Questioning the said order, the judgment-debtor has filed the present civil revision petition.

(3.) The lower Court found that the debt in question was incurred by the judgment-debtor for the purpose of the joint family consisting of himself, his wife and children and mother. In view of the definition of 'family' contained in Section 3 (1) of Act 7 of 1977, the lower Court held that the shares of the judgment-debtor's minor children and his wife have to be included in computing the holding of the judgment-debtor. The lower court found that the father of the judgment-debtor owned Acs.6-00 of dry land out of which the judgment-debtor is entitled to Acs. 3-00 and his mother is entitled to the remaining Acs.3-00. Out of the land of Acs.3-00 falling to the judgment-debtor's share, the lower Court excluded his major son's share from computation and held that the other family members of the judgment-debtor including himself are entitled to Acs.2-40 cents of dry land. In addition to the said land, the lower Court found that the wife of the judgment-debtor, who was examined as R.W.2, purchased an extent of Acs. 6-98 cents of dry land under an agreement of sale dated 11-4-1990, marked as Ex.X.1 and that they are enjoying the same. Adding the said extent of Acs.6-98 cents purchased under Ex.X.1 to the extent of Acs. 2.40 cents, the lower Court came to the conclusion that the family unit of the judgment-deb tor is holding a total extent of Acs.9-38 cents of dry land which is more than the limit prescribed under the Act and as such the judgment-debtor is not a 'small farmer' entitled to the protection of the said Act. At one place in its order, the lower Court, however, observed that since the land purchased under Ex.X.1 is in the possession of one Polepalli Narayanaswamy, it is not helpful to the case of the decree-holder. This observation, however, appears to be a mistake as the said land, which is allegedly in possession of Polepalli Narayanaswamy is of an extent of Acs.2-80 cents and it is referable to Ex.A.1 but not Ex.X.1. Further R.W.2 in her evidence has clearly admitted that she is in possession and employment of the land purchased by her under Ex.X.1.