Judgment:
Gopala Krishna Tamada, J.
1. This appeal is directed against the judgment and decree passed in A.S. No. 29 of 1990 dated 30-9-1991 on the file of the II Additional District Judge, Kurnool.
A short, but important point that falls for consideration in this appeal is whether the Court below erred in not making any distinction between the properties belonging to the debtor that are attachable and liable to be sold and the properties that are to be held by the debtor in terms of Act 7 of 1977 to provide relief to the debtor and whether the Court below erred in going by a principle which is applicable to major sons of a debtor that their properties were not attachable, is not applicable to the properties of the minor sons of the debtor ?
The factual matrix that led to filing of the second appeal in brief is as follows :
Originally, one Raja Subbaiah (since died) filed a suit being O.S. No. 147 of 1976 on the file of the District Munsif, Dhone, against the 1st respondent herein for recovery of certain amount and obtained a decree. Two minor sons of the judgment-debtor-1st respondent, who are the appellants herein, filed E.A. No. 83 of 1981 under Order XXI, Rule 58 of the Code of Civil Procedure (for short 'the Code') to raise attachment in respect of their 2/5th share in the petition schedule property. It is stated in the petition that the petition schedule property is the ancestral joint family property of themselves, their two brothers and their father i.e. the 1st respondent herein and they are personally cultivating their land. The said Raja Subbaiah obtained an order of attachment of the petition schedule property before judgment on 19-7-1976 and the property was brought to sale. It is further stated that the said Raja. Subbaiah was entitled to proceed only against the share of 1st respondent in the schedule property i.e., 1/5th share, but he has got attached even the share of the appellants herein and their brothers. Therefore, the appellants' other brothers filed a claim under Order XXI, Rule 58 of the Code in E.A. No. 350 of 1979. Their claim was upheld in an appeal by the II Additional District Judge, Kurnool on 30-3-1981, who vacated the attachment made in respect of the 2/5th share of the claimants i.e. brothers of the appellants. The case of the appellants is that they are also entitled to 2/5th share in the petition schedule property and they are small farmers within the meaning of Act 7 of 1977 and their share cannot be attached against the debt due by their father under the said Act. Their share is, therefore, neither attachable nor saleable. The appellants, therefore, requested the Court to vacate the attachment made in respect of their 2/5th joint share in the schedule property. However, the trial Court dismissed the said application. Aggrieved by the same, the appellants preferred an appeal being A.S. No. 29 of 1990 before the II Additional District Judge, Kurnol. The lower appellate Court, on consideration of the entire material available on record, dismissed the said appeal holding that the appellants herein failed to prove that they are the small farmers entitled to the benefits of Act 7 of 1977. Hence, the present second appeal.
2. The learned counsel for the appellants strongly contended that it is not in dispute that the original judgment debtor Kongisi Naganna i.e. 1st respondent herein cannot be termed as a small farmer and the point that fell for consideration before the lower appellate Court was not as to whether the appellant are small farmers or not, but the point was whether their shares are liable to be attached or not and instead of answering that question, the lower appellate Court proceeded on the wrong assumption that when once the entire share of the family's holding is taken into consideration and the original Judgment debtor is held to be not smallfarmer, and therefore the shares of the minor sons of the debtor cannot be raised fromthe attachment.
I have also heard the learned counsel for the respondents,
3. From a perusal of the judgment of the Court below, it is clear that that it gave more emphasis on the aspect of small farmer, which was discussed in paragraphs 7 to 9 of its judgment, which aspect was not at all in dispute.
4. Now, coming to the point that is involved in this appeal is whether the principle applied by the Court below in raising the attachment of the two major sons is equally applicable to the appellants herein or not and in that aspect the Court below discussed in para 10 of its judgment as under :
'Next contention urged is that the claim petition filed by other brothers of present claim petitioners was allowed and the said order binds decree holder and, therefore, the present claim petition is also to be allowed. Ex. A1 is the certified copy of the decree in A.S. No. 150 of 1980 on the file of the Court the II Additional District Judge, Kurnol. In my considered opinion, the said order does not operate as res judicata in the present case. In that case, the question that fell for consideration was whether the claim petitioners therein were the small farmers or not in that appeal, there was no occasion to consider and in fact it was not even considered whether the present appellants are small farmers or not? Therefore, the said order Ex. Al does not operate as res judicata in the present case.'
5. Admittedly, the judgment debtor is having ancestral property to an extent of Ac. 3.00 of land and also has four sons of whom two are majors and the suit filed by one Raja Subbaiah was decreed against him. In the Execution Petition filed by the decree holder when the property attached before judgment was brought to sale, the two major sons of the judgment debtor filed E.A. No. 350 of 1979 in E.P. No. 73 of 1979 which was dismissed by the trial Court, but in appeal being A.S. N. 150 of 1980 It was allowed holding that their shares cannot be attached and the same was confirmed by this Court. In the said circumstances, the approach adopted by the Court below, in my considered view, is wholly erroneous. No doubt, it is true that the earlier order may not operate as res Judicata to decide the present case. But, the appellants herein stand on the same footing as that of the major sons whose petition for raising attachment was allowed and when that analogy is applied, here it cannot be said that the appellants herein stand on a different footing. Accordingly, I hold that the shares of the appellants herein for which there is an order of attachment shall be raised forthwith and the decree holder can bring the remaining 1/5th share of the judgment debtor for sale in execution of the decree.
Accordingly the second appeal is allowed.
No costs.