RAMA KRISHNA RAO P Vs. P NARASIMHA RAO

JUDGEMENT

(1.) This revision is directed against the order and decretal order dated 25-1-1993 passed in E.A.No.134/91 in E.P.No.79/87 in O.S.No.153/86 on the file of the District Munsiff, Nandigama in Krishna District. By the impugned order, the learned District Munsiff held that the judgment-debtor is not a small farmer within the meaning of A.P. Act 45 of 87.

(2.) The facts resulting in filing of this revision are as follows: The respondent herein filed the suit O.S.No153/86 for the recovery of amount due under a Pronote, dated 17-3-1983 executed by the petitioner herein and that suit was decreed against the petitioner on 24-7-1985. In execution of that decree, the respondent filed E.P.No.79/87 and he brought the immovable properties of the judgment-debtor-petitioner for sale on 25-3-1991. The E.P. Schedule properties were sold through Court in public auction and one Poppuri Seshagiri Rao was the highest bidder for Rs.46,000/-. On 1-4-1991 the petitioner-judgment-debtor filed E.A.No.134/91 stating that he is a small farmer as defined in A.P. Act 45 of 87 and that he got only Ac.1.85 cents to his share, that his joint family consisting of himself and three sons possessed dry land of Acs. 7.42 cents situated in Gokarajupalli and Veerullapdu and that he is having no other source of income and as such, he is entitled to the benefits of A.P. Act 45 of 87 and that his debt should be deemed to have been discharged and as such he is not liable to pay the decretal amount. The respondent-decree-holder filed a counter resisting the claim of the petitioner-judgment-debtor contending that the judgment-debtor is not entitled to the benefits of A.P. Act 45 of 87, that the judgment-debtor is having 10 acres of land with his three minor sons and that the wife of the judgment- debtor is having Acs.4.32 cents of land, that since 20 years the judgment debtor is cultivating the lands of others on lease, that judgment-debtor had taken a plea in his additional counter filed in the execution petition stating that he is a small farmer, but subsequently he remained ex parte and thus, the present petition is barred by the principle of res judicata. Both sides adduced both oral and documentary evidence, on behalf of the petitioner-JDr, besides examining himself as P.W.1, P.Ws. 2 to 4 were examined and Exs. A-1 to A-6 were marked. On behalf of the respondent-decree-holder, besides examining himself as R.W.1, R.Ws.2 to 4 were examined and Exs.B-1 and B-2 were marked. Exs.X-1 and X-2 were also marked through witnesses. On a consideration of oral and documentary evidence on record, the learned District Munsiff proceeded on the presumption that the debt is a family debt and that three sons of the JDr. are minors and the family of the judgment-debtor owns an extent of Acs.7.56 cents and that the judgment-debtor was given an extent of Ac.1.06 cents by his paternal aunt for performing the obsequies of her husband and the total extent of the judgment-debtor is Acs.8.62 cents which is more than the extent of the land prescribed under the Act 45 of 87 and therefore, the learned District Munsiff held that the petitioner is not a small farmer and thus, he is not entitled for the benefits of the Act and consequently, dismissed the petition directing each party to bear its costs. Assailing the said finding of the learned District Munsiff, the judgment-debtor has come up with this revision.

(3.) The learned Counsel appearing for the petitioner-judgment-debtor has assailed the correctness of the order of the lower Court contending firstly, that the assumption of the lower Court that the debt in question is a family debt is without any basis and secondly, that the lands possessed by the judgment-debtor's wife and the shares of the judgment-debtor's three sons should be excluded from consideration while determining the holding of the judgment-debtor while considering whether the judgment-debtor is a small farmer within the meaning of Act 45 of 87. On the other hand, the learned Counsel for the respondent-decree-holder has tried to sustain the impugned order of the lower Court by contending that the debt is a family debt and that the family of the judgment-debtor consisting of the judgment-debtor and his three minor sons and wife possesses more than the extent of land prescribed under the Act and as such, the judgment-debtor does not come under the definition of small farmer. It is further contended by the learned Counsel for the respondent-decree-holder, that the present plea of the judgment-debtor that he is a small farmer is barred by res judicata.