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2013 DIGILAW 796 (AP)

Tanarapu Surya Rao v. Reddi Mahalakshmi

2013-09-21

R.SUBHASH REDDY

body2013
ORDER 1. This civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, is filed by the judgment debtor in OS No.3 of 1999 on the file of the Junior Civil Judge, Anaparthy, aggrieved by the order dated 29.8.2012, passed in EA No.93 of 2011 in EP No.131 of 2010 in the said suit. 2. To execute the money decree passed in the aforesaid suit, respondent-decree holder filed EP No.131 of 2010, wherein petitioner filed E.A. No.93 of 2011 praying the Court to pass an order declaring that the execution proceedings in the E.P. are null and void. Mainly, the said application is filed on the ground that he is an agriculturist and the property attached in the E.P. is his residential house; as such it is exempted from attachment and sale, for realization of the E.P. amount, under Section 60 CPC. Other ground is that earlier, E.Ps., were filed by the respondent-decree holder in EP Nos.198 of 2002 and 114 of 2003 for sale of the very same property, but the same were closed without any prosecution as such, attachment obtained by the respondent-decree holder under Order XXXVIII Rule 5 ceases to exist. In the E.A. petitioner-judgment debtor was examined as PW1 and respondent-decree holder as RW1. No documentary evidence was filed. The trial Court, by the impugned order, dismissed the E.A. Hence, this civil revision petition. 3. Heard learned Counsel for the parties. 4. It is submitted by the learned Counsel for the petitioner that inasmuch as the petitioner is an agriculturist, his house property is exempted from attachment and sale, in view of the provision under Section 60(c) CPC. It is further submitted that, earlier E.Ps. filed by the respondent-decree holder were closed/dismissed and the earlier attachment order of the house property, which is vacated during the pendency of the suit, ceases to operate. In support of his submission, learned Counsel relies on a decision of a learned Single Judge of this Court in Kollu Kangayya Naidu vs. Jayamangala Reddeyya, AIR 1960 AP 634 . 5. On the other hand, it is submitted by the learned Counsel for the respondent that there is no evidence to show that the petitioner is an agriculturist, and, further, he is not residing in the house in question as such, he is not entitled to claim exemption from attachment and sale of the said house. 5. On the other hand, it is submitted by the learned Counsel for the respondent that there is no evidence to show that the petitioner is an agriculturist, and, further, he is not residing in the house in question as such, he is not entitled to claim exemption from attachment and sale of the said house. Learned Counsel for the respondent relies on Full Bench judgments of the Allahabad and Kerala High Courts in Abdul Hamid and others vs. Mst. Asghari Begum, AIR 1953 All. 1973 and Valli Ammal Arumughom Ammal vs. Narayan Panicker and others, AIR 1963 Ker. (V50 C7), in support of his submission that the provision under Order XXI Rule 57 does not apply to attachment effected before judgment. 6. EA No.93 of 2011 is filed on two grounds. One is that petitioner is an agriculturist and the suit schedule property, which is his residential house, is exempted from attachment and sale in execution of money decree obtained by the respondent-decree holder. A perusal of Section 60(c) CPC would make it clear that residential house of an agriculturist which is in his occupation is only exempted from attachment and sale. There is no evidence on record to show that the petitioner-judgment debtor is in possession of such house as an agriculturist. In the absence of the same, the trial Court rightly rejected the claim of the petitioner. Even the other ground, namely, that in view of the dismissal/closure of earlier E.Ps., filed by the respondent-decree holder, attachment ceases to exist, cannot be accepted. It is to be noticed that, earlier E.Ps., were not dismissed on merits. Further, in the decisions in Abdul Hamid and others case (supra) and Valli Ammal Arumughom Ammal's case (supra), while interpreting the provision under Order XXI Rule 57, in clear terms, it is held that the said provision does not apply to attachment before judgment. It is to be noticed that even in the absence of any such attachment, it is always open to the respondent-decree holder to enforce the decree obtained by him against the house property of the petitioner-judgment debtor in execution proceedings. 7. For the aforesaid reasons, the impugned order cannot be interfered with, in this petition under Section 115 CPC. 8. Civil revision petition is accordingly dismissed. As a sequel to this order, miscellaneous petitions if any pending in the C.R.P., stand closed. No order as to costs.