IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF MAY TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION Nos.2596 and 2597 of 2008 Between: Kodari Narasaiah. ... PETITIONER AND Kankanala Adi Reddy. ...RESPONDENT Counsel for the Petitioner : MR. K. BUCHI BABU Counsel for the Respondent: MR. RAMCHANDER RAO VEMUGANTI The Court made the following: COMMON ORDER: These revisions are preferred by the defendant/judgment debtor aggrieved by the common order passed in E.A.Nos.58 and 59 of 2007 in E.P.No.1 of 1997 dated 09.04.2008. 2. The petitioner herein filed E.A.No.58 of 2007 under Section 47 praying that he being a labourer his house is exempted from attachment under Section 60(1)(c) of the Civil Procedure Code, 1908 and questioned the sale of the house in question for satisfaction of E.P.No.1 of 1997. The respondent/decree holder filed O.S.No.1172 of 1990 for recovery of a sum of Rs.19,600/- towards principal and Rs.10,518/- towards interest as on 06.03.1995 and future interest on Rs.2,352/- as on 06.03.1997. The said suit was decreed on 06.03.1995 and after the decree, the decree holder died and his son had filed EP.No.1 of 1997 before the District Munsif, Huzurabad wherein the said property of the petitioner/judgment debtor bearing H.No.2-92 situated at Illanthakunta village of Jammikunta Mandal was attached and brought to sale for recovery of EP amount of Rs.34,136/- 3. The petitioner herein had also filed EA.No.59 of 2007 praying that under Section 47 CPC read with Section 4 of the Andhra Pradesh Agricultural Indebtedness (Relief) Act, 1977 (for short ‘the Act’) the judgment debtor is declared as fully discharged of the decretal obligation. In the said applications the petitioner had contended that the petitioner is an agricultural labourer and his only source of livelihood is manual labour on the agricultural lands and in view of Section 4 of the Act the decree in question is not executable. He also contended that the said house being a house belonging to an agricultural labourer the same is exempt under proviso (c) to sub-section (1) of Section 60 CPC. 4. The aforesaid applications were contested by the respondent/decree holder pointing out that during the pendency of the suit itself the son in law of the petitioner had filed a claim petition questioning the attachment of the house, on the ground that the petitioner had sold the said house to him. The said petition, on due enquiry, was dismissed. Later, in the present EP, the daughter of the petitioner also filed an application/claim petition E.A.No.3 of 2001 claiming that the suit property was gifted to her by the petitioner as Pasupu Kumkuma, after due enquiry, the said EA was also dismissed and the said dismissal was further confirmed by the Senior Civil Judge, Huzurabad in CMA.No.1 of 2003. It is only, thereafter, that the petitioner has filed the present petitions after almost ten years of the execution petition. It was also pointed out that the petitioner had never raised any such pleas or grounds in the written statement and the said belated pleas cannot be raised ten years after the EP. 5. The executing Court considered both the said applications under the common order dated 09.04.2008 and dismissed both the EA’s on the ground that there is neither any plea nor any evidence in support of any of the contentions of the petitioner. Questioning the said order these revision petitions are preferred by the petitioner. 6. Learned counsel for the petitioner has brought to my notice several decisions of this Court viz. (i) DUGGIRALA BALARAMA KRISHNAYYA v. AROKAPUDI JAGANNADHA RAO[1] for the proposition that the protection available to judgment debtor under proviso (c) to Section 60(1) CPC is based upon the policy of the State and there cannot be any waiver of a right, which is opposed to public policy; (ii) K. APPALAMMA v. B. SEETARAMA MURTHY[2] for the proposition that a plea of the defendant based upon the Act is an important point for consideration and when no such point is framed by the lower Court and no finding is recorded, the judgment suffers from material irregularity and (iii) SYED GHORI KHALEEL BASHA v. PODAMEKALA KONDAIAH[3] wherein this Court considered the provisions of the Act to hold that initial burden is on judgment debtor to prove that he is a small farmer and once that is discharged by the judgment debtor it is for the decree holder to rebut the said presumption. 7. Learned counsel, further, contended that the executing Court has not kept the aforesaid legal principles in mind while rejecting the EA’s filed by the petitioner. He submits that the petitioner being an agricultural labour he is entitled to the benefit of the provisions of the Act even otherwise the house in question cannot be proceeded against, as it is exempt from attachment. 8. Per contra, the learned counsel for the respondent contends that the petitioner never raised any of the pleas, as are now raised and on the contrary he himself filed a counter in the application filed by his son-in-law that he had sold the house property to the son-in-law and the attachment of the property assuming it to be that of the petitioner is not sustainable. Learned counsel also relied upon the rejection of the objections filed by the said son-in-law to the attachment of the house, after enquiry and secondly, the objections filed by the daughter of the petitioner alleging gift – Pasupu Kumkuma of the EP schedule house in her favour was also rejected by the executing Court and the appellate Court. The present objection raised by the petitioner is highly belated and an after thought and was never raised either in the suit or in the EP. 9. The learned counsel relied upon the decisions of this Court in (i) KIKKISETTI PANDU RANGA RAO v. BOORLA NAGA VENKATA SATYANARAYANA[4] for the proposition where the judgment debtor raises a contention based on proviso (c) to Section 60(1) CPC, it is for the judgment debtor to plead and prove that the suit house is exempt from attachment; (ii) P. NARASIMHA RAO v. N. PANDURANGA RAO[5] where this Court held that unless the judgment debtor cultivates the land personally and mainly depends on income from agricultural lands for his livelihood and there is a connection or nexus between the agricultural operations and the house in which the judgment debtor is residing the exemption under proviso (c) to Section 60(1) CPC is not available; (iii) CHAMKURA BRAHMAIAH v. THOTA GANGANNA[6] for the proposition that where the judgment debtor did not raise the question of saleability of the house during the suit he cannot raise the plea at the stage of execution; (iv) to the same effect is a decision of the Karnataka High court in NEELAVVA v. KAREPPA BAPU[7]; (v) another decision in VUTTU APPALASWAMY v. GUNDALA RAMANAMMA[8] for the proposition that even if the judgment debtor is a small farmer it is imperative on him to state the extent of non-agricultural income during the relevant period to claim exclusionary clause under Section 3(t) of the Act; (vi) in another decision in D. RAMALINGA REDDY v. T. MASTHAN REDDY[9] for the proposition that when the plea is not raised in the pleadings in the suit under the principles of res judicata they cannot be raised in execution and (vii) to the same effect is another decision of this Court in KAREDLA SEETHARAMAIAH v. DURVASULA YAGNESWARA RAO[10]. 10. In the light of the aforesaid legal position, point for consideration is as to whether the petitioner/judgment debtor is entitled to raise the said question as to executability of the decree ad as to whether the impugned order of the Court below in rejecting the said objection is justified. 11. It is evident from the record that no such plea was raised by the petitioner during the suit. Such a plea was also not raised in the first instance in the EP. The suit was decreed in 1995 and the present EP was filed in 1997 and the petitioner/judgment debtor filed a counter in the said EP on 01.09.1998, no such pleas as are now raised were raised even in the aforesaid counter filed in the first instance. On the contrary, the petitioner had contended that he had sold the said house to one P. Komaraiah, who is son-in-law of the petitioner, and has also delivered possession. The said Komaraiah had earlier filed a claim petition against the judgment debtor and pending the suit and on enquiry, the same was dismissed and had attained finality. Obviously, therefore, the plea of sale of the property set up by the petitioner stood rejected. Thereafter, the wife of Komaraiah – daughter of the petitioner filed another petition in the present EP claiming that she is the owner of the house by virtue of Pasupu Kumkuma – gifted in her favour. The said claim petition E.A.No.3 of 2001 as well as CMA.No.1 of 2003 were concurrently dismissed by the executing Court as well as the lower appellate Court and that also became final. It is, therefore, clear and apparent that the present plea raised by the petitioner is highly belated apart from the fact that no such plea was raised either in the suit or at the earliest opportunity in the EP. The decisions relied upon and referred to as above clearly hold that such a plea, at this stage of execution, is clearly barred by principles of res judicata under Section 11 CPC. Even otherwise, no evidence is let in nor deposition of the petitioner was recorded in support of his plea and therefore, even assuming that the petitioner can raise a plea now, not even the initial burden is discharged by the petitioner. The contentions of the learned counsel for the petitioner, therefore, cannot be accepted merely on the basis of the affidavit of the petitioner, which is clearly opposed by the counter filed by the decree holder denying the said claim of the petitioner. The executing Court has, therefore, rightly rejected both the said application as merely an attempt to drag on the EP proceedings. I am unable to see any ground, perversity, irregularity or error of law on the part of the impugned order passed by the Court below. The civil revision petition is, therefore, clearly devoid of merits and is liable to be dismissed and is accordingly dismissed with costs. _____________________​ VILAS V. AFZULPURKAR, J May 31st, 2010 DSK [1] AIR 1983 AP 136 [2] 2001 (2) An.W.R. 453 [3] 2001 (2) An.W.R. 470 [4] 2007 (4) ALD 16 [5] 1994 (1) ALT 659 [6] 1993 (3) ALT 434 [7] AIR 1986 KARNATAKA 224 [8] 1984 (2) ALT 68 [9] 1983 (2) APLJ 372 [10] 1980 (2) APLJ 204