Andhra Pradesh High Court - Amravati
B S Rao, Krishna Dist vs B Venkateswara Rao, Krishna Dist on 6 October, 2023
1
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.R.P.Nos.3312 and 3313 of 2016
COMMON ORDER:
The Revision Petition No.3312 of 2016, under Article 227 of
the Constitution of India, is preferred against the order, dated
06.05.2016, in E.P.No.37 of 2015 in O.S.No.33 of 2011 on the file
of the Court of the Principal Junior Civil Judge, Machilipatnam,
Krishna District, (in short 'the court below') filed under Order XXI,
Rule 22, 37 and 38 of C.P.C seeking to arrest the J.Dr and send
him to civil prison to realize the decreetal amount.
The Revision Petition No.3313 of 2016, under Article 227 of
the Constitution of India, is preferred against the order, dated
06.05.2016, in E.P.No.38 of 2015 in O.S.No.445 of 2010 on the file
of the Court of the Principal Junior Civil Judge, Machilipatnam,
Krishna District, (in short 'the court below') filed under Order XXI,
Rule 22, 37 and 38 of C.P.C seeking to arrest the J.Dr and send
him to civil prison to realize the decreetal amount.
2. The respondent herein is the plaintiff/ D.Hr before the
court below filed two suits vide O.S.No.33 of 2011 and O.S.No. 445
of 2010 against the defendant for recovery of the suit amount
basing on the suit promissory notes respectively and both the
suits has been decreed. In the respective suits, the respondent/
D.Hr filed impugned execution proceedings in respective suits
mentioned above, seeking to arrest the J.Dr and send him to civil
prison for realization of the decreetal amount. The court below
holding that issue rule 38 arrest warrant against the J.Dr on
payment of process vide order in E.P.No.37 of 2015, dated
06.05.2016 and E.P.No.38 of 2015, dated 06.05.2016 and allowed
the petitions. Assailing the same, the present Revisions came to be
filed.
3. Since the facts and issue involved in all the Civil
Miscellaneous Appeals and also Contempt Cases are one and the
same, I find it expedient to decide these matters by a Common
Judgment.
4. Heard Sri Narasimha Rao Gudiseva, learned counsel for
the petitioner and none represented for the respondent, though
notice has been served.
5. During hearing learned counsel for the petitioner would
mainly contend that the court below wrongly held that the
petitioner/J.Dr having capacity to satisfy the decree amount, but
failed to make observe that the petitioner/ J.Dr is not doing
anything and not having any properties and he is unable to earn
anything, apart from having girl for marriage, even he is unable to
perform her marriage also. Further the court below failed to
appreciate the fact that the respondent/D.Hr was elected as
Councilor by leaving his business, but he lost everything in the
politics including residential house, now the petitioner/ J.Dr has
taken small rent house in remote area and residing therein, even
he is unable to pay the rents also and unable to pay the school
fees to his children. The court below ought not to have ordered for
arrest of respondent/ J.Dr as the respondent/D.Hr miserably
failed to prove that the J.Dr having capacity to discharge the
decree amount, in the absence of any proof, the execution petition
cannot be ordered that to for arrest of J.Dr. Therefore prays to set
aside the impugned orders of the court below.
6. Perused the record.
7. During hearing learned counsel for the petitioner placed
reliance on the decision of the Hon'ble Apex Court in "Jolly
George Varghese and Another v. The Bank of Cochin"1 wherein
it was held as follows:
"10. Equally meaningful is the import of Article 21 of the
Constitution in the context of imprisonment for non-payment of
debts. The high value of human dignity and the worth of the
human person enshrined in Article 21, read with Artickles 14
and 19, obligates the State not to incarcerate except under law
which is fair, just and reasonable in its procedural essence
Maneka Gandhi 2case as developed further in Sunil Batra v.
Delhi Administration3, Sita Ram v. State of U.P4 and Sunil
Batra v. Delhi Administration lays down the proposition. It is too
obvious to need elaboration that to caste a person in prison
(1980) 2 SCC 360
(1978) 1 SCC 248
(1978) 4 SCC 494: 1979 SCC (Cri) 155
(1979) 2 SCR 1085: (1979) 2 SCC 656
because of his poverty and consequently inability to meet his
contractual liability is appalling. To be poor, in this land of
daridra narayana, is no crime and to recover debts by the
procedure of putting one in prison is too flagrantly violative of
Article 21 unless there is proof of the minimal fairness of his
willful failure to pay in spite of his sufficient means and absence
of more terribly pressing claims on his means such as medical
bills to treat cancer or other grave illness. Unreasonbleness and
unfairness in such a procedure is inferable from Article 11 of the
Covenant. But this is precisely the interpretation we have put on
the proviso to Section 51, CPC and the lethal blow of Article 21
cannot strike down the provision, as now interpreted"
8. It is the only contention of the petitioner that the
petitioner is not having any means to discharge the debt, but to
prove the same; he did not adduce any oral evidence nor marked
any document to substantiate his case. Even the petitioner did not
come to witness box to say the same lines, therefore the contention
of the petitioner cannot be believed. Therefore the court below
upon perusal of the material on record holding in the absence of
any cogent evidence placed by the petitioner/ J.Dr and the
evidence placed by the respondent/ D.Hr to establish the means of
the J.Dr, the respondent is entitled for relief as prayed for and that
allowed the petitions.
9. In the instant case, the decision relied by the learned
counsel for the petitioner is not applicable to the facts of this case
as the petitioner has not produced any documentary evidence to
show that the petitioner is suffering with poverty and he is not
having any means to discharge the debt. Upon perusal of the
evidence, the petitioner did not elicit such contentions. Therefore
the capacity of the petitioner cannot be viewed under high value of
human dignity under Article 21 read with Article 14 and 19.
10. This Court finds any merit in the argument of the
learned counsel for the petitioner, how the petitioner/ J.Dr is
entitled to set aside the impugned orders, in the absence of any
positive evidence in his favour. Further the petitioner herein also
failed to establish his case both before the court below and also
this court.
11. In view of the aforementioned circumstances, both the
C.R.Ps are dismissed by a common order. There shall be no order
as to costs.
As a sequel, miscellaneous applications pending, if any,
shall also stand closed.
___________________________
DR.K.MANMADHA RAO, J
Date: 06.10.2023.
KK
THE HON'BLE DR. JUSTICE K. MANMADHA RAO
C.R.P.Nos.3312 and 3313 of 2016
Date: 06.10.2023.
KK
