ORDER :

The Civil Revision Petition is filed under Section 115 CPC against the order dated 23.06.2022, allowing E.P.No.31 of 2018 in O.S.No.215 of 2006 on the file of the Court of Principal Senior Civil Judge, Kovvur filed under Order XXI Rule 64 to 66 of CPC seeking realization of the decretal debt by sale of the E.P. schedule property of a building bearing door No.4-33 in an extent of 200 Sq.yards located in Vadalagunta Village, Gopalapuram Mandal, West Godavari District.

2. The decree-holder filed the petition in E.P.No.31 of 2018 to realize the decretal amount of Rs.7,95,666/- showing the value of the E.P. schedule property as Rs.5,00,000/-. The boundaries to the E.P. schedule are East-Street; South- Nunna Vijaya Mohana Rao’s site; West-Remaining site of Nunna Mehar Baba/ judgment debtor; and North-Road.

3. The petition was opposed by filing the counter of judgment debtor mainly on the grounds that the property of judgment debtor is an extent of 387 Sq.yards with RCC building therein; that the property does not belong to judgment debtor; and that the said property belongs to his daughter and she is in possession and enjoyment of the same and therefore the sale of property to an extent of 200 Sq.yards is not possible. It is further contended that the decree-holder did not specify as to which part of 200 Sq.yards of site out of the total extent 387 Sq.yards is to be put to sale and that the E.P. schedule property is not correct and its door number is not correct and therefore judgment debtor sought to dismiss the petition. Further, judgment debtor stated that he is an agriculturist and he is entitled to reside in the building and its sale is exempt under Section 60 CPC and therefore the execution petition is liable to be dismissed. Lastly, it is also contended that the value of the property mentioned in the execution petition is very lower than the market value.

4. After hearing both parties, the Execution Court allowed the petition observing that the judgment debtor did not furnish any evidence or the details that the property was gifted to his daughter, but decree-holder filed a copy of the settlement deed dated 30.04.2001 in favour of the judgment debtor and therefore judgment debtor is the owner of the property and the execution petition schedule property can be put to sale. The Execution Court further held that if at all judgment debtor alienated his property to his daughter subsequent to the order of attachment, decree-holder can lay his claim against the property and thus allowed the petition.

5. Having been aggrieved by the order, this revision petition is filed mainly on the ground that the Execution Court failed to appreciate that the building is exempt from attachment and sale in execution as per Section 60 CPC inspite of a ground taken by the judgment debtor in his counter that is an agriculturist and entitled to reside in the building and that the Execution Court without conducting any enquiry under Section 60 CPC, mechanically passed the impugned order and therefore the same is liable to be set aside.

6. Sri Bolla Venkata Rama Rao, the learned counsel for the revision petitioner reiterated the same. He further submitted that though the cause title in the suit as well as the execution petition describe the occupation of the defendant/judgment debtor as cultivation, the same is omitted in the cause title in the order and it was totally ignored.

7. Sri Kambhampati Ramesh Babu, the learned counsel for the respondent submitted that Section 60 CPC would apply only when judgment debtor is in occupation of the building, whereas according to the contention raised in the counter, he is not in occupation and his daughter is in occupation. He further submitted that the property was attached before judgment and this point was never raised by the defendant in the said petition and therefore, he is estopped from raising the same in this execution petition, by application of principle of res judicata. In this regard he placed reli