M N Reddy, Kurnool Dist vs Mandha Katam Raju, Kurnool Dist
2023 Latest Caselaw 4962 AP

                                      1




             THE HON'BLE DR.JUSTICE K. MANMADHA RAO

                           C.R.P.No.1594 of 2016

ORDER:

Aggrieved by the orders dated 08.02.2016 passed in E.A.No.

87 of 2014 in O.S.No.542 of 2007 on the file of the Court of

Principal Junior Civil Judge, Nandyal, (in short 'the court below')

the present revision is filed.

2. The petitioner herein is the D.Hr/plaintiff; respondent

herein is the J.Dr/defendant before the court below.

3. The petitioner herein has filed an application in E.A.No.

87 of 2014 in O.S.No.542 of 2007 under Section 21, rule 37 and

38 of CPC seeking to issue notice to the Judgment Debtor and to

arrest and detain him in civil prison for realization of the decretal

amount. The trial court held that the D.Hr failed to prove that the

J.Dr has having landed properties in his name and dismissed the

impugned E.P. Assailing the same, the present revision came to be

filed.

4. Heard Mr. N. Sriram Murthy, learned counsel for the

petitioner and Mr. G. Sravan Kumar, learned counsel for the

respondent.

5. Learned counsel for the petitioner would contend that as

per documents i.e Ex.P1 to P4 clearly shows that

respondent/J.Drs father own and possess land and it is a fact that

he died about 10 years back leaving behind him, his wife and son,

who is the J.Dr, the court below should have held that the

respondent/ J.Dr has got means to pay the decretal amount and

intentionally avoiding to pay the same, as such it should have

issued notice as per order 21, rule 37 CPC and should have

ordered to send him to civil prison. It is further contended that

when the evidence of RW-2, who is VRO who categorically deposed

that Ex.X1 to X4 were altered in the name of wife of Golla

Maddilety, who is the father of the respondent/ J.Dr after death of

Golla Maddilety that too without any orders from the Mandal

Revenue Officer clearly shows that the said entries are

manipulated at the instance of the respondent/ J.Dr to suit his

contention. Therefore the impugned order of the court below is

based on mere surmises and not in accordance with law. Therefore

the revision is liable to be allowed.

6. Whereas learned counsel for the respondent reiterated the

contents urged before the court below and vehemently opposed to

allow the revision.

7. Perused the record.

8. During hearing learned counsel for the petitioner placed

on record the decision of the composite High Court of Andhra

Pradesh in "Visarapu Someswara Rao v. Mutyala Ganga Raju

and Others"1, wherein it was held as follows:

"6. As per his own admission that the petitioner has got a house and tractor- trailer and that he had gone to Dubai, it cannot be said that he has no means to pay the decreetal amount. Moreover, the petitioner submits that he has already paid half of the decreetal amount and, therefore, it cannot be said that he has no means to pay the balance amount."

In "K. Ravi Kumar Reddy and Another v. I.C.D.S Ltd.,

Manipal"2, wherein the learned Single Judge of this Court held as

follows:

"6. With reference to the second objection, in order to prove that the petitioners are possessed of sufficient means, the respondents have marked Exs.A2 to A6 to establish that the petitioners are owning Acs. 4-61 cents of land in Kakkalapalli Polam. The petitioners have not denied the fact that they own the said property. Their contention was that the said property belongs to the joint family. It is not their pleaded case that there are any legal constraints for alienating the joint family property and paying the decretal amount. Under Section 58 of the Code, the sine qua non for ordering arrest and detention of the judgment-

debtors in civil prison is that despite having means to pay the amount

1 2011(4) ALD 143 2 2012(3) ALD 152

under the decree or some substantial part thereof, they have refused or neglected to pay the same. In Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470, on which the learned Senior Counsel has placed heavy reliance, while interpreting the words " ...or has had since the date of the decree, the means to pay the amount of the decree..." in Section 51 of the Code, the Supreme Court held that there must be some element of bad faith beyond mere indifference to pay, or some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The Supreme Court further held that the present needs of the judgment-debtor are relevant consideration for considering his conduct in not paying the decretal amount.

7. In my opinion, once the judgment debtor's means to pay is established, unless the judgment debtor pleads extenuating circumstances that despite having means to pay the decretal amount, he is unable to discharge the same, his conduct in not discharging the decretal amount even though he is possessed of the means, would give rise to a reasonable presumption that he is refusing or neglecting to pay the decretal amount with a mala fide intention to evade payment to the decree-holder. As noted above, no reasons have been put forth by the petitioners as to why they are not able to liquidate the property and pay the decretal amount. In the light of these facts, I am unable to accept the submission of the learned Senior Counsel that the Court below has committed an error in ordering the petitioners' arrest for non-payment of the amount under the awards.

9. The cross examination of RW-1 would show that

Maddilety, who is father of RW-1 was died 8 years back, his

mother was alive. Further RW-1 filed petition in I.P.No.8 of 2006

on the file of court of Senior Civil Judge, Nandyal, which was

dismissed. Further as per Adangal in respect of Sy.No. 7, 10/2 and

14 would show that the properties stands in the name of M. Golla

Maddilety, so also the revenue records such as 1-B Adangal,

Pattadar Pass Book as per admission of RW-2. Therefore the

petitioner has proved the landed properties of the J.Dr.

10. Whereas as per evidence, the court below held that the

J.Dr is having lands at Pulimaddi Village and he is residing

therein, but no documents were filed to show that landed

properties are stands in the name of J.Dr. As per Ex.P1, the

property was stands in the name of Maddilety, who is father of

J.Dr and death certificate of J.Dr was not also filed and no record

was shown that the J.Dr was in possession of the property shown

in Ex.P1 and these are denied by the respondent.

11. Therefore, it is evident on the face of the record that the

J.Dr had properties of his own and that the petitioner herein has

proved the same. Therefore he is entitled the relief as claimed for.

Further the decisions relied upon by the petitioner is applicable to

the facts of the case. Hence the revision is liable to be allowed.

12. Accordingly, the C.R.P is allowed. There shall be no

order as to costs.

As a sequel thereto, miscellaneous petitions, if any, pending

shall stand closed.

___________________________________ DR.JUSTICE K. MANMADHA RAO Date: 13.10.2023.

KK

THE HON'BLE DR.JUSTICE K. MANMADHA RAO

C.R.P.No.1594 of 2016

Date 13.10.2023.

KK