K KRISHNAVENI Vs. P PITCHAIAH

JUDGEMENT

(1.) The Second Judgment Debtor in the Execution Proceedings i.e. the second defendant in the suit is the revision petitioner herein. The respondent herein, (plaintiff in the suit), tiled O.S. No. 46/84 in the Court of the District Munsif, Gannavaram for recovery of a sum of Rs. 4,600-00. on the basis of the promissory note dated 10-3-1983 after deducting payments made against two defendants, viz. 10 Kankipati Lakshmipathi and 2) Kankipati Krishnaveni. In the suit, the second defendant i.e. the revision petitioner herein filed a written statement contending that she did not borrow any amount and never executed the suit promissory note and one Veora Seshagiri Rao who was intimate with her might have got into existence the suit pronote in collusion with the first defendant to knock away the properties of the second defendant. She also stated that the transfer of the suit pronote was collusive and that the promissor had no capacity to lend a sum of Rs. 5,000/-. No plea was taken in the written statement that she was an agriculturist. The suit was decreed after contest on 31-1-1986. During the pendency of the suit, no contention was raised that the second defendant was an agriculturist.

(2.) During the pendency of the suit, the decree-holder attached the house before judgment in I.A.No. -431 of 1984 belonging to the second defendant which is the subject matter of these proceedings. The second defendant did not raise any objection to the said attachment. After the suit was decreed on 31-1-1986, the said house was brought to sale in E.P. No. 40 of J986. The petitioner herein received sale notice under Order 21 Rule 22 C PC but did not raise any objection for the sale of the attached property on the ground that it was exempted from attachment under Section 60 CPC. When the house was about to be sold the petitioner herein filed E.A. No. 142 of 1986 in E.P. No. 40 of 1986 in O.S. No. 46 of 1984 under Section, 47 and Section 151 CPC praying for the dismissal of the E.P. No. 40 of 1986 on the ground that the petition schedule is not liable for attachment and sale. It was stated in the petition that the petitioner is eking out her livelihood doing agricultural labour besides as a tailor and is living in the petition schedule house and hence it cannot be attached under Section 60 (I) (c) ot CPC. The respondentDecree holder filed a counter deying that the (judgment debtor no. 2) Petitioner is solely dependent and living as agricultural labour besides a tailor. It was stated that the petitioner is living by tailoring and is being maintained by the daughter and son-in-law and since the petitioner is not an agricultural labour the house is liable for attachment. It was further submitted that the property was attached in I.A. No. 431/84 before judgment and the petitioner received sale notice in this execution petition also but she did not take any objection that the sale of the schedule mentioned property is exempt under Section 60 (1) (c) CPC, Hence it is not open to the petitioner to raise this objection at a later stage of the execution proceedings. The petition is a belated one filed with a view to delay the execution of the decree and hence it is not maintainable. The lower Court held that in all earlier proceedings in the suit and in exection proceedings the petitioner mentioned her profession as tailor and there was no whisper at any time that she was an agricultural labourer and the present assertion appears to be an after thought to delay the fruits of the decree and to have the benefit of legal protection available to some class of persons. As the petitioner failed to lake the plea that she was an agricultural labourer and entitled to the benefits under Section 60 (1) (c) CPC both in the suit and execution at the earlier stages both in the suit and execution. She is barred now from taking that plea by the principles of constructive res-judicata. The lower Court furter held that there are no merits and Jorce in the plea of the petitioner herein except for protracting the litigation on some pretext or the other. Accordingly, the lower Court dismissed the application, E.A. No. 142 of 1986 on 4-8-1986, and the sale was held on 6-8-1986.

(3.) Aggrieved by the aforesaid order, the second judgment-debtor preferred this revision petition.