THE HON'BLE Ms. JUSTICE B.S.BHANUMATHI
Civil Revision Petition No. 310 of 2018
ORDER:
The unsuccessful Judgment Debtor ('JDr') filed this civil revision petition, under Section 115 of the Code of Civil Procedure, 1908, ('Code'), assailing the order, dated 29.11.2017, of the learned Junior Civil Judge, Tadipatri, passed in E.P.No.98 of 2016 in O.S.No.111 of 2015.
2. Heard Sri Vijaya Bhaskar Moola, learned counsel appearing for the revision petitioner/Judgment Debtor (JDr). Though the respondent is served with notice, none appeared for the respondent. The parties shall hereinafter be referred to as 'JDr' and 'DHr' for convenience and clarity.
3. The facts necessary and relevant, in brief, are as follows:
The JDr is an employee working as Conductor in APSRTC, Tadipatri Depot, and drawing a salary to a tune of Rs.40,000/- per month. Though the execution Court passed a decree in favour of the DHr, the JDr failed to pay the suit amount with interest. Though there are several attachments against the salary of the JDr, he has movable and immovable properties, but he is evading payment of the amount under the decree. Hence, the JDr filed the petition seeking arrest of the JDr and to detain him in civil prison.
4. The JDr filed a counter and resisted the Execution Petition averring that the execution petition seeking arrest of the JDr is not maintainable as no prior notice is issued to the respondent/JDr. Filing 2 BSB, J C.R.P.No.310 of 2018 the execution petition seeking arrest of the JDr without proceeding against the salary is not tenable and hence, the execution petition is liable to be dismissed. Further, interest is not correctly calculated and excessive amount was claimed. There are no merits in the petition and the same is liable to be dismissed.
5. During the course of enquiry, neither oral nor documentary evidence was adduced on either side. On merits and by the order impugned in this revision, the trial Court allowed the execution petition and ordered arrest warrant under Order XXI Rule 38 CPC.
6. Aggrieved thereof, the JDr filed this revision petition on the ground that the order impugned if allowed to stand would occasion in failure of justice and cause irreparable loss to the petitioner. The DHr except filing the execution petition has not even filed an affidavit in support of the averments thereof and that he further failed to furnish particulars of the properties owned by the petitioner.
7. Now the point for consideration is:
Whether the DHr made out valid and sufficient grounds for ordering the execution of the decree by arrest and detention of the JDr in civil prison? and if not, whether the impugned order is sustainable?
8. POINT:
Though the fact that the JDr is working as an employee in APSRTC and receiving salary, the execution was opposed on the ground that there was no prior notice issued to him and also that the execution petition cannot be directly filed for arrest of the JDr without proceeding for recovery of salary from him and further that the amount of liability calculated with regard to interest is not correct. 3
BSB, J C.R.P.No.310 of 2018 With regard t objection of executability of the decree by arrest of the JDr when he is a salaried employee is concerned, the execution Court by placing reliance on the decision in Patnana Venkataramana v. Vungatla Appa Rao [(2010) AOR (AP) 230], which is a decision subsequent to the earlier decision in K.Vijaykumar v. N.Gururaja Rao [2004 (3) ALT 476] relied on by the JDr, upheld the execution petition and proceeded to issue warrant of arrest for recovery of amount. With regard to such observation, the revision petitioner contended that the learned Judge of the execution Court misconstrued the law laid down by the High Court in Patnana Venkataramana (supra) and no ground is shown and it was misconstrued.
9. In fact, when there are two conflicting decisions of coordinate Benches, the one which is recent can be followed and thus, no illegality or irregularity is committed by the execution Court.
10. Insofar as the capacity of the JDr to pay off the decretal debt is concerned, it is an admitted fact that he is working as an employee in APSRTC and drawing salary. It is not his case that there are any other liabilities than the decretal debt as against his salary. As such, in the absence of any other ground shown by him, there is no point in contending that his salary cannot be considered as his capacity to pay off the decretal debt. Thus, there is a mode of execution of the decree by realization from salary by way of attachment and recovery available to DHr. It is also equally open for the DHr to opt for any other mode of execution of the decree available under law. Thus, it is clear that the JDr, having capacity to pay off the decretal debt since failed to do so, the execution Court is right in ordering issuance of warrant of arrest for recovery of the decretal debt.
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BSB, J C.R.P.No.310 of 2018
11. It is contended in the grounds of revision that the DHr failed to provide and prove the particulars of property owned by the JDr. When the capacity of JDr to pay off the decretal debt in view of salary being earned by him is established, it is not necessary for the DHr to prove that the JDr has any other properties and yielding income. Therefore, irrespective of plea or proof regarding the properties owned by the JDr, it is not a ground to disallow the relief claimed by the DHr in the present execution petition.
12. It is also contended in the grounds of revision that the DHr failed to file an affidavit in support of the averments made in the execution petition. It is one of the conditions precedent to accept the execution petition for realization of the decretal amount by way of arrest to file affidavit in support thereof. Such a plea was not obviously taken in the counter. It is not even pressed during the course of arguments before this Court. This Court is of the opinion that the execution petition being numbered indicates that it is supported by an affidavit. Just because its copy is not enclosed in the revision petition, it cannot be taken as a ground which is raised for the first time before this Court.
13. It is further contended in the grounds of revision that no prior notice was issued, but failed to indicate notice under what provision of law was not issued, nor was this ground raised in the arguments.
14. The learned counsel for the revision petitioner further submitted that this Court may allow the JDr to discharge the decretal debt in some monthly instalments, if the Court does not interfere with the impugned order. It is not permissible to do so because the defendant/JDr has to apply for decree directing payment by 5 BSB, J C.R.P.No.310 of 2018 instalments as per Order 20 Rule 11 CPC to the Court which passed it and not by this Court without following the procedure under Rule 11(2). Moreover, the interim order dated 25.01.2018 passed by this Court in C.R.P.M.P.No.1 of 2018 in this revision petition shows such an opportunity was given directing the following:
"Notice before admission.
Subject to the condition of petitioner paying a sum of Rs.7,000/- per month to the respondent on or before 15th of every month, there shall be interim stay as prayed for. The first instalment stating from 15th February, 2018. In default, stay stands vacated."
Yet, it seems that the revision petitioner/JDr has not availed the benefit of it. If the condition is complied, the decretal debt get discharged by now. In fact, unless the condition is complied, the order of stay does not come into operation or continue to operate. If the execution proceedings are continuously shown by the execution Court as though stay came into force or continue to operate in spite of not complying the condition, there is serious lapse and the matter will be seriously viewed.
15. For all the above reasons, there is no merit in the revision petition.
16. In the result, the Civil Revision Petition is dismissed with the observations made in the preceding discussion.
There shall be no order as to costs.
Miscellaneous petitions pending, if any, shall stand closed.
________________ B.S BHANUMATHI, J 20th June, 2022 RAR