Unknown vs Hon'Ble Sri Justice Ninala ...
2022 Latest Caselaw 1454 AP

          HON'BLE SRI JUSTICE NINALA JAYASURYA

         CIVIL REVISION PETITION Nos.645 & 646 OF 2020

COMMON ORDER:

     Civil Revision Petition No.645 of 2020 is filed against the

order dated 19.2.2020 in O.E.P. No.51 of 2018 in O.S.No.209

of 2009 on the file of the Court of the learned Principal Senior

Civil Judge, Madanapalle.      C.R.P. No.646 of 2020 is filed

against the order dated 19.2.2020 in O.E.P. No.50 of 2018 in

O.S.No.49 of 2009 on the file of the same Court.


2.   As the matters are of similar nature and the petitioner

in both the Revision Petitions is one and the same, both the

Revision Petitions are being disposed of, by this common

order.


3.   Heard learned counsel for the petitioner and the learned

counsel for the respondents.

4. By separate orders dated 19.2.2020 in the above said

petitions filed under Order XXI, Rules 37 & 38 of the Code of

Civil Procedure, 1908 (CPC), warrants of arrest were issued

against the petitioner, who is the Judgment Debtor in the

above referred suits. The respondents herein are the wife and

husband. The wife is the Decree Holder in O.S.No.49 of 2009

and the husband is the Decree Holder in O.S.No.209 of 2009.

The said suits are filed for recovery of Rs.8,59,667/- and

Rs.8,60,000/- on the foot of separate Promissory notes dated

21.1.2006 and 07.9.2006 executed by the

petitioner/defendant. Vide separate judgments dated

22.9.2016, the suits were decreed, as prayed for, together

with interest at 12% per annum from the date of the suit till

the date of decree and at 6% per annum from the date of

decree till the date of realization. The judgments and decrees

in the said suits have become final. Seeking execution of the

respective decrees, the respondents initiated Execution

Proceedings and the properties were attached under Order

XXXVIII, Rule 5 CPC. Subsequently, the above mentioned

O.E.Ps were filed seeking to detain the petitioner in civil

prison for his failure to discharge the decretal amounts. On

contest, the said petitions were allowed by separate orders

dated 19.2.2020 against which the respective Civil Revision

Petitions are filed, as mentioned above.

5. The learned counsel for the petitioner inter alia submits

that the impugned orders under Revisions are not

sustainable. He submits that the petitioners have no means

to discharge the decretal amounts and without taking the

said aspect into consideration, the Executing Court has

passed the orders, which are under challenge. He submits

that the respondents have obtained orders of attachment and

instead of proceeding against the properties attached in the

respective suits, deliberately and with a mala fide intention

filed the above said petitions seeking arrest of the petitioner.

He further submits that the Executing Court failed to exercise

the jurisdiction vested in it and that the orders under

revisions are liable to be set aside.

6. On the other hand, the learned counsel for the

respondents filed counter affidavits stating that the petitioner

is having financial capacity and he is in real estate business,

and only with a view to harass the respondents and evade

payment of the decretal amounts, the present revision

petitions are filed. While refuting the contention that the

petitions seeking arrest were filed with a mala fide intention is

not correct, he submits that it is the prerogative of Decree

Holder to choose the method for getting the decrees executed

and Judgment Debtor has no say in the matter. The learned

counsel also relies on Order XXI, Rule 30 CPC and submits

that there are no merits warranting interference in the orders

under revisions. Accordingly, he seeks dismissal of the same.

7. This Court by order dated 05.3.2020 in CRP No.645 of

2020 granted stay on the condition of the petitioner

depositing half of the E.P. amount within a period of six

weeks from the date of receipt of a copy of the said order. In

CRP No.646 of 2020 by order dated 04.3.2020 stay was

granted on the condition of the petitioner depositing half of

the E.P. amount within a period of eight weeks. The petitioner

complied with the said orders and the respondents were

permitted to withdraw the amounts deposited by orders dated

22.2.2022 in the respective revision petitions.

8. Be that as it may. This Court has considered the

submissions made and gone through the individual orders

passed in the above mentioned petitions. The Executing Court

on considering the oral and documentary evidence adduced

on behalf of the parties, recorded categorical conclusions that

the Judgment Debtor is having sufficient means to honour

the decrees. It has also recorded a finding that the

petitioner/Judgment Debtor is having sufficient means to

discharge the decretal amounts and he is avoiding to honour

the decrees. This Court, in such circumstances, is not

inclined to interfere with the well-considered orders of the

Executing Court and the contentions advanced on behalf of

the petitioner are therefore rejected. However, as half of the

decretal amounts have already been deposited, this Court

deems it appropriate to give an opportunity to the petitioner

to fully satisfy the decrees by depositing the balance amounts

within a stipulated period.

9. Accordingly, the Civil Revision Petitions are disposed of,

by recalling the warrants pursuant to the orders in the above

referred O.E.Ps, subject to the condition of the petitioner

depositing the balance decretal amounts to the credit of the

respective suits, within a period of eight weeks from the date

of receipt of a copy of this order. In the event, the amounts

are not deposited within the time as mentioned above, the

orders passed in O.E.P. No.51 of 2018 in O.S.No.209 of 2009

and O.E.P. No.50 of 2018 in O.S.No.49 of 2009 stand

automatically revived. No costs. Miscellaneous petitions, if

any pending, shall stand closed.

________________________ NINALA JAYASURYA, J March 24, 2022.

vasu