TUMMURI SURYANARAYANA Vs. TADI RAMAKRISBNA ABBAYI

JUDGEMENT

(1.) This revision petition is filed against the order of the Munsif Magistrate, Mummidivaram, directing the judgment-debtor who is the petitioner herein to pay the decretal amount. The learned District Munisif also came to the conclusion that the judgment-debtor is not a small farmer.

(2.) Sri N.V. Suryanarayana Murthy, the learned counsel for the petitioner vehemently contended that the order of the Lower Court is erroneous and the finding given in another judgment that the judgment-debtor is not a small farmer cannot be taken into consideration. When once it was found after due enquiry that the judgment-debtor is not a small farmer, he is estopped from pleading again that he is a small farmer.

(3.) It is also contended that the property was attached and so he cannot be arrested now. In support of his contention the learned counsel relied on a decision of the Supreme Court in Jolly George Varghese vs. The Bank of Cochin.,AIR 1980 SC 470 In that case the Supreme Court has not dealt with the principle that whenever an order of attachment of the property has been made, an order of arrest cannot be ordered. The decree-holder has got liberty to proceed with either for arrest of the judgment debtor or for attachment of propertiy or for both. The power of the decree-holder to proceed simultaneously or to proceed against the judgment-debtor for his arrest or for attachment of his property has not been taken away by the judgment of the Supreme Court (cited above). An option is left to the decree-holder to choose the forum and the decision is left to the executing Court on the facts that have been brought out in that case. In this case, on facts, in spite of the fact of attachment of the property, the decree holder is not prevented from filing an application under Order 21 Rule 37 C P.C. I do not see any grounds for interference.