Shaik Moulana vs Abar Khan Durrani
2022 Latest Caselaw 8735 AP

          HON'BLE SRI JUSTICE SUBBA REDDY SATTI

           CIVIL REVISION PETITION No.842 of 2022

ORDER:

Judgment Debtor No.1 in the execution proceedings filed

the present civil revision petition under Section 115 of CPC

challenging the order, dated 08.04.2022 passed in E.P.No.116 of

2019 in O.S.No.209 of 2005 on the file of learned II Additional

Senior Civil Judge, Kakinada.

2. For the sake of convenience, the parties shall be referred

to as they are arrayed in E.P.No.116 of 2019.

3. Decree holder filed O.S.No.209 of 2005 against judgment

debtor Nos.1 and 2 for recovery of amount. The said suit was

decreed in part on 02.04.2009. Decree holder himself filed

appeal A.S.No.246 of 2009 on the file of learned VI Additional

District Judge, Kakinada and the appeal was dismissed on

27.10.2018 confirming the decree of the trial Court. Judgment

debtors did not file any appeal against said judgment and

decree.

4. Decree holder filed E.P.No.116 of 2019 under Order XXI

Rule 37 and Section 55 of CPC to issue notice to judgment

debtor No.1 and send him to civil prison for realization of

decreetal amount. Decree holder contended that judgment

debtor No.1 is having means and he is doing business.

Judgment debtor No.1 is also having movable and immovable

properties. Inspite of having means, he is not paying the

decreetal amount and hence, decree holder filed execution

petition.

5. Judgment debtor No.1 filed counter and contended inter

alia that he is residing in a rental house and he is under the

care of his sons; that he underwent by-pass surgery and unable

to do any work; that he does not have any amounts; that he

does not have either movable or immovable properties; that

decree holder failed to follow the procedure contemplated under

Sections 51 and 55 of CPC; that judgment debtor No.1 and his

brother alienated their properties along back in the year, 2004

and thus, prayed to dismiss the petition.

6. The Decree holder examined himself as PW1. Judgment

debtor No.1 examined himself as RW1. The Executing Court by

order, dated 08.04.2022 allowed the petition and issued Rule 38

warrant against judgment debtor No.1, on payment of process.

Against the said order, the present revision is filed.

7. This Court by order, dated 24.06.2022 granted interim

stay sand same is extended from time to time.

8. Heard Sri P. Rajasekhar, learned counsel for the

petitioner and Sri S.V.S.S. Siva Ram, learned counsel for

respondent No.1.

9. Learned counsel for the petitioner/judgment debtor No.1

would contend that Judgment Debtor No.1 does not have means

to discharge the decreetal amount. He would also contend that

decree holder failed to prove that judgment debtor No.1, inspite

of having sufficient means, evaded to discharge decreetal

amount. He would also contend that executing Court did not

follow the ratio laid in Jolly George Varghese and another v.

The Bank of Cochin1, Aluru Venkata Rao vs. Kodali Venkata

Sri Krishna Jaganmohana Rao2 and order, dated 25.06.2019

in CRP No.4988 of 2016.

10. Learned counsel for respondent No.1/decree holder while

supporting the order of Court below would contend that decree

holder proved that judgment debtor No.1 is having sufficient

means to discharge the decreetal amount by adducing evidence.

AIR 1980 SC 470

1994 (3) ALT 538

Judgment debtor is intentionally evading to pay the decretal

amount. Thus, prays to dismiss the revision petition.

11. In view of the contentions the points that arise for

consideration are:

1. Whether the Decree holder proved means of Judgement

Debtor?

2. Whether Judgment Debtor, having means, is evading to

discharge the decretal amount intentionally.?

12. In the case of Jolly George Varghese and another v.

The Bank of Cochin, the Hon'ble Apex Court held as under:

"The words which hurt are "or has had since the date of the decree, the means to pay the amount of the decree." This implies, superficially read, that if at any time after the passing of an old decree the judgment- debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art.11 (of the Covenant) and Art.21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay,

some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here consideration of the debtor's other pressing needs and straitened circumstances will play prominently. We would have, by this construction, sauced law with justice, harmonized S.51 with the Covenant and the Constitution."

13. In the case of Aluru Venkata Rao vs. Kodali Venkata Sri

Krishna Jaganmohana Rao, the High Court of Judicature,

Andhra Pradesh at Hyderabad held as under:

"The initial burden of proving that the judgment debtor has means to pay the amount of the decree or some substantial part thereof and that he is refusing or neglecting to pay the same, would be on the decree holder in view of the composite effect of Sections 101 and 102 of the Evidence Act, since the decree holder wants the Court to give a decision or judgment of the liability of the judgment debtor to pay the decretal amount and secondly the decree holder would fail on that question if no evidence at all were given by either side."

14. Learned Single Judge of this Court in CRP No.4988 of

2016, held as under:

"In the case on hand, the Court had no material to be satisfied that the property was capable of generating revenue/yielding any, return etc. Similarly, the deliberate intention to pay the debt is not borne out by the record. Neither the income of the judgment debtor nor the income capable of being generated from the asset said to be owned by the judgment debtor are proved. Thus, the necessary ingredients for ordering arrest are not proved in this case as per this Court."

15. In the case on hand, decree holder examined himself as

PW1. He deposed that judgment debtor No.1 has wholesale

mutton business. In the cross-examination of PW1 it was also

elicited that IP No.45 of 2005 filed by judgment debtor No.1 was

dismissed. Thus, the decree holder prima facie placed some

material before the executing Court that judgment debtor No.1

has been running business. The Insolvency Petition filed by

judgment debtor No.1 was also dismissed. Once decree holder

places evidence before executing Court about the judgment

debtor No.1's business, the onus shifts to judgment debtor No.1

to establish that he doesn't have means to discharge the

decretal amount.

16. Judgment debtor No.1, in the counter contended that he

has been residing in a rental house and underwent heart

surgery. He further contended that he is depending upon his

sons. He also deposed that he sold away property in the year,

2004. In the cross-examination, he deposed that he is having a

mutton shop at Kakinada big market. However, he denied his

earning of Rs.50,000/- on mutton shop and he volunteers that

he is earning Rs.500/- per day. During cross-examination, he

further asserted that IP is still pending notwithstanding the fact

that IP was dismissed. Regarding the house property owned by

him, he deposed that said house was sold away in the year,

2005.

17. The burden on the decree holder regarding the means of

J.Dr, in the considered opinion of this Court, has been proved

by the admission of J.Dr No.1 that he is running mutton shop

business. Judgment debtor No.1 in fact pleaded that he is not

doing any business and he is depending upon his sons, however

admitted about his doing business. A person, who is doing

mutton business in big market at Kakinada, cannot contend

that he has no means to discharge decreetal amount. The

evidence on record clearly establishes that judgment debtor

No.1 inspite of having means is evading payment of decreetal

amount. In view of the evidence on record and considering the

ratio in Jolley George's case, as the deliberate intention to avoid

decreetal amount by judgment debtor No.1 despite holding

means/property is being satisfied, this Court finds no illegality

in the order of the Court below.

18. The executing Court having considered all the above

aspects allowed the petition and issued Rule 38 warrant, on

payment of process. There are no merits in the revision. Hence,

the same is liable to be dismissed.

19. Accordingly, this Civil Revision Petition is dismissed at the

stage of admission. No costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

__________________________ SUBBA REDDY SATTI, J

Date : 15.11.2022

ikn

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.842 of 2022

Date : 15.11.2022

ikn