Andhra Pradesh High Court - Amravati
N. Chandra Kala, Anantapur Dist vs K. Veera Reddy, Anantapur Dist on 22 February, 2021
Bench: K Suresh Reddy
THE HON'BLE SRI JUSTICE K.SURESH REDDY
CIVIL REVISION PETITION No. 632 OF 2017
ORDER:
The present civil revision petition is filed against order dated
25-11-2016 passed in E.P.No. 43 of 2013 in O.S.No. 264 of 2001 on the
file of the Court of learned Junior Civil Judge, Tadipatri (for short, 'the
Court below').
2. In spite of service of notice, the respondent did not choose to
appear either in person or through his counsel. Hence, this Court is
constrained to pass orders.
3. The petitioner-D.Hr. filed execution petition in E.P.No. 43 of 2013
under order 21 Rule 37 of the Code of Civil Procedure for realization of
E.P. amount by arrest and detention of the respondent-J.Dr. The Court
below, by order dated 09-12-2014, dismissed the E.P. stating that the
D.Hr. failed to produce salary certificate of the J.Dr. and that the D.Hr.
did not produce any material to show that the J.Dr. is intentionally
evading to pay the E.P. amount. Aggrieved by the same, the petitioner-
D.Hr. filed C.R.P.No. 416 of 2015 before this Court. After hearing both
sides, this Court on 01-12-2015 passed the following order:
"In order to pass an order for arrest, it is incumbent upon the petitioner
to prove that in spite of sufficient means, the judgment debtor is
avoiding payment of the decretal amount. The petitioner should have
lead evidence on this aspect and the trial Court should have recorded a
finding thereof. In absence of the said aspect, the impugned order
dated 09-12-2014 in E.P.No. 43 of 2013 in O.S.No. 264 of 2001 is set
aside and it is remanded to the trial Court for passing fresh orders in
accordance with law, after giving due opportunity to both the parties.
The civil revision petition is, accordingly, allowed.
After remand, the Court below once again dismissed the E.P. by the
impugned order. The operative portion of the order passed by the Court
below is as follows:
"Now it is to be seen whether the petitioner/D.Hr. proved that the
respondent/J.Dr. has any other means, apart from his salary, to pay the
decretal amount to her. Except Ex.P1 salary certificate of the
respondent/J.Dr., the petitioner/D.Hr. did not file any other document to
show that the respondent/J.Dr. has other means apart from his salary to
pay the decretal amount to the petitioner/D.Hr. Even if Ex.P1 salary
certificate of the respondent/J.Dr. is taken into consideration, it cannot
be said that the respondent/J.Dr. has sufficient means to pay the E.P.
amount of Rs.99,925/- together with costs of the E.P. at a time.
Therefore, it is held that Ex.P1 is not helpful to the petitioner/D.Hr. in
proving the means of the respondent/J.Dr. to pay the decretal amount to
her. Further, she admitted in her cross-examination that she did not file
any document to show that J.Dr. is getting Rs.1,00,000/- from other
source. Therefore, it is held that the petitioner/D.Hr. utterly failed to
prove that the respondent/J.Dr. has sufficient means to pay the decretal
amount to the petitioner/D.Hr. at once. Accordingly, this point is
answered.
In the result, the E.P. is dismissed with costs.
4. A perusal of the impugned order reveals that the approach of the
Court below and the view taken by it are contrary to law. Admittedly, the
respondent-J.Dr. is working as a Headmaster and the petitioner-D.Hr.
produced salary certificate of the respondent before the Court below
after remand from this Court. Evidently, the salary certificate of the
respondent shows that he is getting net salary of Rs.57,046/- but the
Court below dismissed the E.P. stating that the respondent has no
means to pay the E.P. amount of Rs.99,925/- together with costs at a
time. The view taken by the Court below cannot be considered as
correct and is totally unwarranted. Admittedly, the respondent is working
as a Headmaster and his salary certificate is also there on record. This
itself shows that the respondent, having sufficient means to pay the E.P.
amount, is deliberately evading to pay the E.P. amount to the petitioner.
5. In the above circumstances, the order dated 25-11-2016 passed in
E.P.No. 43 of 2013 in O.S.No. 264 of 2001 on the file of the Court below
is hereby set aside and the matter is remanded to the Court below for
passing orders afresh, by taking into consideration salary certificate and
means of the respondent, in accordance with law after hearing both
parties. This exercise shall be completed within a period of one month
from the date of receipt of a copy of this order. The Registry is directed
to send original records, if they are lying in this Court, along with a copy
of the order to the Court below within a period of two weeks from today.
6. The civil revision petition is accordingly allowed. Pending
miscellaneous applications, if any, shall stand closed in consequence.
___________________
Date: 22-02-2021. K.SURESH REDDY, J.
JSK
THE HON'BLE SRI JUSTICE K.SURESH REDDY
CIVIL REVISION PETITION No. 632 OF 2017
DATE: 22ND FEBRUARY, 2021
JSK
