M Balakrishna vs S M Basha
2023 Latest Caselaw 4961 AP

       HON'BLE DR. JUSTICE K. MANMADHA RAO

       CIVIL REVISION PETITION No.4681 of 2016

ORDER :

This Civil Revision Petition is filed by the petitioner

against the Order, dated 01.08.2016 passed in E.P.No.54 of

2014 in O.S.No.257 of 2010 on the file of Court of the

Junior Civil Judge, Dharmavaram.

2. The petitioner herein is the Decree Holder and the

respondent herein is the Judgment Debtor in E.P.No.54 of

2014 on the file of Junior Civil Judge, Dharmavaram (for

short "the Court below"). The present impugned application

in E.P.No.54 of 2014 in O.S.No.257 of 2010 was filed by the

petitioner under Order 21 Rule 37 and 38 CPC to commit

J.Dr to civil prison as he neglected to pay the decree debt in

spite of having sufficient means and capacity.

4. Brief facts of the case are that after passing of the

decree, the petitioner/D.Hr demanded the respondent/J.Dr

for discharge of decree debt, but the respondent refused and

neglected to pay the same and did not make payment.

Further stated that the respondent is doing business in bed

sheets, bed racks and also in groundnut and getting income

of Rs.10,00,000/- per annum. The respondent is also doing

contract work and getting Rs.5,00,000/- per annum, thus

the respondent has got sufficient means and capacity to

discharge the decree debt but wantonly neglecting to pay the

same. Therefore, the petitioner/D.Hr preferred the

impugned application seeking to commit the respondent/

J.Dr to civil prison.

5. The respondent/J.Dr filed counter before the Court

below and denied all the allegations made in the petition

and stated that the respondent has no means and capacity

to discharge the decree debt and the respondent is not doing

any business as alleged by the petitioner. It is further

stated that the respondent is suffering with diabetes and he

got large family and all his family members are depending

upon him and hence prayed to dismiss the petition.

6. During the course of enquiry, on behalf of the

petitioner/D.Hr, he himself was examined as PW.1 and on

behalf of the respondent/J.Dr, he himself was examined as

RW.1.

7. Basing on the pleadings, the Court below has

framed the following point for consideration:

Whether the J.Dr have got sufficient means and capacity to discharge the E.P amount and wantonly neglecting to pay the decree debt?

8. After considering the material on record and on

considering the submissions made by both the counsel, the

Court below has dismissed the impugned application on the

ground that the petitioner/D.Hr failed to prove the means

and capacity of the J.Dr to discharge the decree debt.

Challenging the same, the present civil revision petition

came to be filed.

9. Heard Sri Maheswara Rao Kunchem, learned

counsel for the petitioner. Perused the material available on

record.

10. Learned counsel for the petitioner submits that

the respondent is doing business in bed sheets, bed racks

and groundnut and he is getting annual income of

Rs.10,00,000/-, further, the respondent has got sufficient

means and capacity to discharge the dcree debt but

wantonly neglecting to pay the same, and hence, the

respondent/J.Dr may be committed to civil prison.

11. To support his contentions, learned cousnel for

the petitioner has placed reliance on the judgment of this

Court reported in Konda Subbaiah v. Yedoti

Kamalakshaiah1, wherein this Court held that :

6. Another aspect is that, even as regards the status of the respondent, as a landless poor, the Executing Court has placed the entire burden upon the petitioner. The precedent cited before it, was just brushed aside, by observing that, it does not apply.

7. The approach adopted by the Executing Court is totally untenable in law Once a decree is passed in favour of the plaintiff in a suit, the corresponding obligation is placed upon the defendant, to discharge the decree When there is no response from the defendant, for discharging the decree, the plaintiff had an option to choose the method of execution. Arrest of the judgment-debtor is one such options. It can he resorted to, only when it is alleged by the decree-holder, that the judgment-debtor failed to comply with the decree, though the latter possessed of adequate means Law does not require him to conclusively prove this. As a matter of fact, it is just impossible for anyone to prove the properties and resources possessed by another. The duty of a decree- holder in matters of this nature ends, where he places some material before the Executing Court, which indicates that the judgment-debtor is possessed of the property and means Thereupon, the burden shifts to the judgment-debtor, to establish, as to how he is handicapped from discharging the decree.

9. The Executing Court erred on both counts, viz., requiring the petitioner to prove the means, possessed by the respondent, on the one hand, and relieving the respondent totally, from proving the pleas raised by him. It is on account of such an approach, that the decrees, which are obtained after prolonged litigation and considerable expenditure, are reduced to non-entities. This would naturally tell upon the efficacy of the adjudication, through Courts. Unless the Courts also feel the responsibility, to ensure that the decrees passed by it are given effect to, the credibility of the system would naturally beat stake. The facilties created by Law, in faovur of judgment-debtors, can certainly be extended to them, but not just for the asking of it.

2008 (6) ALD 290

10. For the foregoing reasons, the CRP is allowed and the order under revision is set aside. The Executing Court is directed to hear and sipose of the EP, afresh, following the correct principles of law"

12. On the other hand, learned counsel for the

respondent/J.Dr while denying the allegations made by the

petitioner submitted that the respondent has no means and

capacity to discharge the decree debt and he is a diabetic

patient having large family and hence the Court below has

rightly dismissed the application.

13. On a perusal of the material available on record, it

is observed that, after passing decree in the suit, the

petitioner/ Decree Holder demanded the respondent/

Judgment Debtor for discharge of decree debt, but the

respondent neglected to pay the same even though he has

sufficient means to pay the decree debt. As seen from the

version of PW.1, he asserted that the respondent/ J.Dr is

doing business in Bed sheets, bed racks and groundnut and

earning Rs.10,00,000/- per annum. But the respondent

has not produced any proof to show the same.

14. As seen from the cross examination of RW.1, he

clearly admitted that, after death of his mother, the house

property bearing D.No.2/450, 2/450-1, 2/451 are in

possession of himself and his brothers and that he is

depriving sufficient income from the property of his mother

and have got capacity to pay the decree debt. It clearly

establishes that the respondent has sufficient means to pay

the decree debt.

15. In view of the facts and circumstances of the case,

considering the submissions made by learned counsel for

the petitioner and on perusing the judgment of this Court

referred to above, this Court is incline to allow the present

revision petition by setting aside the order of the Court

below.

16. Accordingly, the Civil Revision Petition is allowed.

The order dated 01.08.2016 passed in E.P.No.54 of 2014 in

O.S.No.257 of 2010 on the file of Court of the Junior Civil

Judge, Dharmavaram, is hereby set aside. There shall be no

order as to costs.

17. As a sequel, miscellaneous applications pending, if any, shall also stand closed.

______________________________ DR. K. MANMADHA RAO, J.

Date :     13 -10-2023
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      HON'BLE DR. JUSTICE K. MANMADHA RAO




      CIVIL REVISION PETITION No.4681 of 2016




                Date :   13.10.2023




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