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Andhra High Court · body

2007 DIGILAW 939 (AP)

Gajula nanganna v. Ediga Lakshmi Devi

2007-09-26

G.YETHIRAJULU

body2007
ORDER This Revision Petition is filed by the Judgment Debtor in E.P.No.248 of 2004 in O.S.No.656 of 2003 on the file of the Junior Civil Judge, Dhone. 2. The Decree Holder filed a suit for recovery of money and it was decreed. Later, she filed E.P. for attachment of bulls and cart. The Judgment Debtor resisted the said E.P. by saying that he is an agricultural coolie, therefore, his implements cannot be attached under Section 60 of C.P.C. He filed E.A.No.34 of 2005 for raising attachment of the bulls and cart. The Execution Court, after considering the evidence adduced by both parties, came to a conclusion that the bulls and cart are not liable for attachment. Hence, the Application was allowed. Being aggrieved by the same, the Decree Holder preferred C.M.A.No.4 of 2005 before the Principal District Judge, Kurnool, and the said Appeal was allowed by setting aside the order of the Execution Court by observing that there is no evidence to the effect that the petitioner was using the bulls and cart for agricultural purpose. It is further observed that when his deposition shows that he gave his land towards discharge of his debts, the question of cultivating such lands does arise at all. He should have given evidence before the Court in support of his claim and for not doing so, an adverse inference has to be drawn. An agricultural coolie does not require any bulls and carts. Even supposing that he happneds to be an agricultural coolie, the bull and cart are not to be exempted under Section 60 of C.P.C. for the same reasons. Accordingly, the Appellate Court allowed the Appeal by setting aside the order of the Execution Court. Being aggrieved by the same, the Judgment Debtor preferred the present Appeal. 3. In the light of the above circumstances, the point for consideration is: Whether the bulls and cart, being the agricultural implements, are exempted under Section 60 of C.P.C. from attachment. Section 60 (c) of C.P.C. reads as follows: 60. Property liable to attachment and sale in execution of decree.-(1) The following property is liable to attachment and sale in execution of a decree, namely ........................................... Provided that the following properties shall not be liable to such attachment or sale, namely:-- (a) ................................... (b) ................................... Section 60 (c) of C.P.C. reads as follows: 60. Property liable to attachment and sale in execution of decree.-(1) The following property is liable to attachment and sale in execution of a decree, namely ........................................... Provided that the following properties shall not be liable to such attachment or sale, namely:-- (a) ................................... (b) ................................... (c) houses and other buildings (with the materials and the sites thereof and the land immediately appurtenant thereto and necessary for their enjoyment) belonging to [an agriculturist or a labourer or a domestic servant] and occupied by him. (d) .......................................... 4. The learned counsel for the Revision Petitioner submitted that the bulls and the cart possessed by the Judgment Debtor were being used for agricultural operations, whereas the learned counsel for the respondent submitted that there is no evidence adduced by the Judgment Debtor to show that the bulls and cart are being used for agricultural purpose, therefore, the Appellate Court was right in ordering attachment of the bulls and cart by drawing a presumption that the bulls and cart are not being used for agricultural purpose. 5. The learned counsel for the Revision Petitioner relied on a Judgment of this Court in SEELI TIRUPATI AND OTHERS v. BHUPATHIRAJU JANIKAMMA AND OTHERS 1, wherein this Court held that: "The test of tilling the soil and being unable to maintain himself otherwise, laid down in decided cases, is one which is pre-eminently satisfied by an agricultural labourer. Therefore, an agricultural labourer is an 'agriculturist' within the meaning of Section 60 (c) Civil Procedure Code. The mere fact that in decided cases, that the judgment-debtor owned land or had interest in the land was also referred to and relied upon can by no means support the contention that a person who does not own agricultural land, but is only an agricultural labourer, is not entitled to the benefit of section 60 (c), civil Procedure Code. The definition of 'agriculturist' in the Madras Agriculturists Relief Act cannot be accepted for construing section 60 (c) of the Code, inasmuch as the former is a special enactment." The above decision indicates that an agricultural labourer is also an agriculturist within the definition of Section 60 (c) of C.P.C., therefore, the agricultural coolie shall be treated as agriculturist and the implements used by him are exempted under Section 60 (c) of C.P.C. from attachment. Therefore, the learned counsel for the Revision Petitioner requested to set aside the order of the Appellate Court by holding that the Revision Petitioner comes within the definition of Section 60 (c) of C.P.C. 6. On the other hand, the learned counsel for the respondent relied on NARSINGH v. KAM ANDAS (FB) 2, wherein a Full Bench of Madya Pradesh High Court considered whether the attached cart is an implement of husbandry and observed that there is no evidence that the cart is being used by the Judgment Debtor in connection his agricultural operation. Had there been evidence to the effect that the cart is being used by him for bringing manure or seeds or for transporting the crop from the field to thrashing floor or for such other purpose, it could have certainly been held to be an agricultural implement. In view of the fact that there is no such evidence, the cart in the instant case cannot be held to be an implement of husbandry of the Judgment Debtor, therefore, those implements are not liable to be exempted from attachment. 7. By relying on the above decision, the learned counsel for the respondent submitted that since there is no evidence adduced by the Judgment Debtor that the bulls and cart are being used for agricultural purpose, they are not exempted under Section 60 (c) of C.P.C. 8. It is an undisputed fact that the Revision Petitioner is an agricultural coolie and he used to have agricultural lands. But sometime prior to the attachment of the bulls and cart, the land was delivered to the creditors for the amounts due to them, therefore, he was eking out his livelihood by working as agricultural coolie. It is an undisputed fact that the Revision Petitioner is an agricultural coolie and he used to have agricultural lands. But sometime prior to the attachment of the bulls and cart, the land was delivered to the creditors for the amounts due to them, therefore, he was eking out his livelihood by working as agricultural coolie. It is also an admitted fact that he continues to possess bulls and cart, therefore, when he has no other occupation except the agricultural coolie work and when there is no other evidence that the bulls and cart are being used for any other purpose in the village, where agriculture is the only occupation, the presumption has to be drawn that he is using the bulls and cart for agricultural work only and he is eking out his livelihood by hiring those implements also to get more wages, therefore, if there is any prima facie material that he is using the bulls and cart for any other purpose, the burden is on him to prove that he is using them exclusively for agricultural purpose. In the absence of such material, we can safely conclude that an agricultural coolie, possessing agricultural implements like bulls and carts, used those implements for agricultural work only for getting more wages, therefore, the finding of the Appellate Court that there is no material to show that the Judgment Debtor is using the implements for the agricultural purpose only cannot be sustained. 9. The learned counsel for the respondent further submitted that the Judgment Debtor filed an I.P. to adjudge him as an insolvent. In the said Application he did not show the bulls and cart as the properties possessed by him, therefore, they are not exempted from attachment. But the fact remains that the Judgment Debtor was possessing bulls and cart and under what circumstances he failed to mention those things in the insolvency petition is not known. Simply because he failed to show them in the Insolvency Petition, it cannot be said that he is not using the bulls and cart for agricultural purpose, therefore, I do not find any force in the contention of the respondent in this regard. 10. In the light of the above observations, I am inclined to set aside the order passed by the Appellate Court. 11. In the result, the Revision Petition is allowed. 10. In the light of the above observations, I am inclined to set aside the order passed by the Appellate Court. 11. In the result, the Revision Petition is allowed. The order passed by the Appellate Court in C.M.A.No.4 of 2005 is set aside by confirming the order passed by the Execution Court in E.A.No.14 of 2005. No costs.