SBAIK MOHAMMAD HUSSAIN Vs. MADA REDDAIAB

JUDGEMENT

(1.) This is a revision against the order of the Munsif Magistrate, Rayachoti, dated 14-6-1978 in E.P. No, 39 of 1977 rejecting the contention raised by the judgment-debtor that he is a small farmer and arresting him under Or. 21 rule 37 C.P.C. is illegal.

(2.) Sri K. Parvathisam, the learned counsel for the petitioner, contended that even if the petitioner is not a small farmer and the extent of the land held by him is more than what is required to be under Act 7 of 1977, the lower Court erred in directing the arrest of the petitioner without complying with the provisions of Sec, 51 C.P.C. The learned counsel for the petitioner pointed out that this is mandatory on the part of the lower Court. He further contended that the Court below should have given a finding that the judgmen'.-debtor is possessed of sufficient means to pay the amount of the decree or some substantial part thereof, but refused or neglected to pay the same. In the absence of such a finding, the order of arrest is illegal.

(3.) Mr.M.N. Narasimhareddy, learned counsel for the respondent- decree-holder, on the other hand contended that the petitioner-judgment- debtor filed a petition on the ground that be is a small farmer and therefore the Court should discharge him from the liability of the decree debt and dismiss the E P as the same gets abated unde Sec. 4 of Act 7 of 1977. According to the learned counsel, the responden'-decree-holder also being a small farmer, the debt in question is not a debt exempted under Act 7 of 1977 and the question whether the. petititioner-judgment-debtor is a small farmer or not is not relevant for the purpose of this petition.