THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 3330 of 2007 Order: This revision is directed against the order dated 06.06.2007 passed in E.P. No. 159 of 2003 in O.S. No.33 of 2003 on the file of the Principal Junior Civil Judge, Razole, attaching the property of the petitioner herein for realization of the decretal amount. It is not in dispute that the respondent herein is the decree holder in O.S. No.33 of 2003, which was filed for recovery of money. The said suit was decreed on 11.08.2003. The respondent/decree holder filed E.P. No.159 of 2003 praying to attach the suit schedule property and to issue notice to JDR under Order XXI Rules 54 and 66 CPC and to sell the property after due proclamation under Order XXI Rule 64 CPC for realization of the decretal amount. The main contention of the petitioner/JDr is that the petition schedule property was assigned to his wife and since the assigned land cannot be alienated, the same cannot be sold even in Court auction in execution proceedings. It is also contended that admittedly the petitioner/JDr is an agriculturist and when it is contended by the petitioner that he along with his family members have been enjoying the usufruct of six coconut trees situated in the suit schedule property as their livelihood by residing in the house situated therein, such property is exempted from execution proceedings under Section 60 of CPC. In spite of service of notice, none appears for the respondent. Learned counsel for the petitioner submits that the impugned order is not sustainable under Section 60 (1)(c) CPC. He has also relied on the judgment of this Court reported in M. Anumakka v. Turpu Gopal Reddy[1], wherein this Court held that the decree holder is precluded from bringing the assigned land for sale in execution of decree passed in his favour. It is also his submission that the lower Court has wrongly held that the burden lies on the petitioner to establish his contentions. The only point that arises for consideration is whether the impugned order is sustainable or not. A reading of the impugned order gives an impression that the lower Court has placed the burden on the petitioner to establish his case that the petition schedule property is an assigned land and that he has been residing in the said house and that he has no other properties except the petition schedule property. It is well settled that the burden always lies on the decree holder to establish that the property is liable to attachment and sale in execution of a decree, particularly when the judgment debtor has taken a specific stand that the property is not liable to attachment and sale under Section 60 of CPC. The petitioner/judgment debtor in his grounds of appeal had taken a specific stand that he has filed a duplicate patta since the original was missing and also filed a petition under Order 16 Rules 1 and 5 of CPC to issue summons to the Mandal Revenue Officer, Razole, to produce the records and to give evidence about the issuance of patta, since the other side objected for marking the duplicate patta. As per Section 60(c) CPC 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 are not liable to be attached and sold in execution of a decree. Learned counsel for the petitioner has also brought to my notice the cause title of the execution petition wherein the occupation of the petitioner/JDr has been mentioned as an agriculturist by the respondent/decree holder himself. Therefore, prima facie, it appears that it is not in dispute that the petitioner/JDr is an agriculturist. When he is an agriculturist and when he claims that the land sought to be attached is patta land assigned to his wife and that he along with his family members have been residing in the house therein and enjoying the usufruct of six coconut trees situated in the said land, it is clear that the same is not attachable in view of the proviso to Clause (c) of sub- section 1 of Section 60 CPC. Learned counsel for the petitioner has also furnished Xerox copy of the patta certificate in respect of 0-02 ½ cents in Sy.No.153/4, situated at Shivakodu village, Razole Mandal, which reveals that the petition schedule property has been assigned to the wife of the petitioner, namely Smt. Yandrapu Satyavathi, w/o Nageswara Rao. It is settled law that the assigned lands, which are covered under the A.P. Assigned Lands (Prohibition of Transfers) Act, 1977 (Act 9/97), are not liable for attachment and sale in execution of a decree by a Civil Court. As seen from the impugned order, the parties have not adduced any oral or documentary evidence in support of the rival contentions. Of course, it is for the parties to lead evidence in support of their contentions. But, when a specific claim has been made that the property is not liable for attachment under Section 60 CPC and that it is an assigned land and when the petitioner/JDr claims to have filed the duplicate patta, the lower Court ought to have considered the same. If the original document is lost, the parties are entitled to lead secondary evidence and they may file a certified copy of the same duly obtained from the concerned office or Court. Even the lower Court also can exercise powers to summon the relevant record from the office concerned for the purpose of knowing whether the property sought to be attached and sold in execution of the decree is assigned land or not. Ultimately, the Court has to do justice to the parties. For the purpose of doing justice the Court must ascertain the facts. For the purpose of ascertaining the facts, the Court must insist the parties to adduce necessary evidence. Since no evidence is let in by the parties and since the petitioner claims that the land sought to be attached is an assigned land and not liable for attachment under Clause (c) of sub-section 1 of Section 60 CPC, I consider it just and reasonable to set aside the impugned order and remand the matter to the lower Court for the purpose of fresh enquiry. Accordingly, the CRP is allowed. The impugned order is set aside and the matter is remitted to the lower Court for fresh enquiry. The parties are at liberty to adduce evidence in support of their rival contentions and the lower Court, after giving reasonable opportunity to both the parties to lead evidence, shall pass appropriate orders in the matter in accordance with law. There shall be no order as to costs. ___________________ B. CHANDRA KUMAR, J. Date: 18.11.2010 Nsr [1] 2009 (4) ALT 401