Andhra Pradesh High Court - Amravati

Chenna Harinath vs D C Venkata Subamma on 22 June, 2022

Bench: B S Bhanumathi

            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

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.

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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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

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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.