Andhra Pradesh High Court - Amravati

Vijaya Lakshmi Rice And Dall Mill vs Yalavarthi Jhansi Lakshmi on 26 June, 2024

        IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATI

                MONDAY .THE TWENTY FOURTH DAY OF JUNE
                    TWO THOUSAND AND TWENTY FOUR


                                    PRESENT



            THE HONOURABLE MS JUSTICE B S BHANUMATHI


                  CIVIL REVISION PETITION NO: 17 OF 2023


       Petition under Section 115 of the Constitution of India .praying that in
the circumstances stated in the grounds filed herein .the High Court may
be pleased to Memorandum of Civil Revision Petition to this Hon'ble Court
against   the   order     dated.14.06.2022   in   E.P.No.   85/2012   in   O.S.No.

211/2009 on the file of the Court of the Principal Senior Civil Judge. Tenali.

Between:


Vijaya Lakshmi Rice And Dali Mill. Contractor- V.L. Rice Industries, rep.by its
Managing Partner. Tadepalli Siva Lingeswara Rao. S/o.Lakshmaiah. aged
about 67 years. C/o. Vijayalakshmi Finance. 0pp. Alankar Theater.Morrispet.
Tenali. Guntur District


                                                                 ...PETITIONER

                                      AND



Yalavarthi Jhansi Lakshmi. W/o. Subhash Chandra Bose, aged about 62
years. R/o.Vijay Sai Apartments. H.No. 12-13-7. Ganta Van Veedhi.
Pandurangapet. Tenali-2. Guntur District

                                                               ...RESPONDENT
 lA NO: 2 OF 2023



      Petition under Section 151 CPC praying that in the circumstances
stated in the affidavit filed in support of the petition, the High Court may be
pleased to stay of all further proceedings in E.P.No.85/2012 in O.S. No.211
of 2009 on ,,the file of the Court of the Principal Senior Civil Judge, Tenali
including arrest of petitioner,pending disposal of the above CRP

Counsel for the Petitioner: SRI. VV L N SARMA



Counsel for the Respondent: Smt. MARELLA RADHA

The Court made the following Order:
 APHC010613322022

                   IN THE HIGH COURT OF ANDHRA PRADESH
                                 AT AMARAVATI                      [3311]
                          (Special Original Jurisdiction)

           MONDAY ,THE TWENTY FOURTH DAY OF JUNE
                   TWO THOUSAND AND TWENTY FOUR

                                 PRESENT

          THE HONOURABLE MS JUSTICE B S BHANUMATHI

                   CIVIL REVISION PETITION NO: 17/2023

Between:


Vijaya Lakshmi Rice And Dali Mill     ■                     ...PETITIONER

                                    AND


Yalavarthi Jhansi Lakshmi                               ...RESPONDENT

Counsel for the Petitioner:

   1.VVLN SARMA

Counsel for the Respondent:

    1.MARELLARADHA

The Court made the following:


ORDER:

This Civil Revision Petition is filed under Section 115 CPC against

the order dated 14.06.2022 allowing E.P.No.85 of 2012 in O.S.No.211 of 2009 on the file of the court of Principal Senior Civil Judge, Tenali filed under Order XXI Rules 22, 37 and 38 CPC by the DHr for recovery of the decretal amount of Rs.2,05,157/- with future interest as per the decree.

2. The decree holder contended that the JDr, having sufficient means by running a Vijayalakshmi Rice and Dali Mill to discharge the decretal debt, intentionally failed to discharge the same.

3. The petition was opposed by filing counter of JDr opposing the maintainability of the petition against the JDr represented by Tadepalli Sivalingeswara Rao on the ground that the decree was passed only against the firm and there is no personal decree against the individual and further that the firm is not in existence as it was already dissolved and for that reason also, no partner is individually liable for the debts belonging to the firm. Apart from that, the JDr contended that an appeal in A.S.No.173 of 2012 was preferred before the IV Additional District Judge, Guntur against the decree in execution and filed an application for stay of all proceedings in execution, but, the DHr, having received the notice and contesting the appeal, filed the present execution petition. It is also contended that the JDr has no movable or immovable properties of his own, nor has he any other source of income and that he depends on his son for his livelihood at the age of 60 years and suffering from several ailments.

4. The DHr was examined as P.W.1 and Tadepalli Sivalingeswara Rao was examined as R.W.1 and S.Venkata Satya Naga Pratap Kumar was examined as RW.2. No documentary evidence was filed by either party.

5. After hearing both sides, the execution Court allowed the petition observing that PW.1 is admittedly a managing partner of the JDr rice and dall mill and no documentary proof was filed to show that the mill is not in existence and as such he is running rice mill and he has capacity to pay the decretal amount, but failed to discharge the decretal debt.

<6-

6. Aggrieved by the order, this revision petition is filed reiterating the grounds taken in the counter and further stating that the execution Court failed to appreciate the legal principles and evidence on record.

7. Sri V.V.L.N.Sarma, the learned counsel for the petitioner/JDr contended that the DHr had not filed any proof that the JDr has

sufficient means to discharge the decretal debt, yet, the execution Court allowed the petition by assumptions. He further submitted that as per the decision of the Supreme Court in Jolly George Varghese and another Vs The Bank of Cochin^ there is a heavy burden on the DHr to establish the means of JDr to allow the petition under Order XXI Rule 37 CPC since it has penal consequences.

8. He placed reliance on the decision of this High Court in

K.Koteshwar Rao Vs Md.Phayaz Ahammad @ Ganni^ wherein, referring to the decision of the Supreme Court in Jolly George Varghese and another (supra) dismissed the execution petition for want of evidence of means.

This Court in K.Koteshwar Rao (1 supra) held at paras 5 & 6 as follows:

"5. POINT:- The Trial Court on consideration of the evidence

of the decree-holder and the 1st respondent/judgment-debtor held that the decree-holder did not adduce any evidence to establish that the judgment-debtor is having means as

pleaded by the decree-holder. The Hon'ble Apex Court in Jolly

AIR 1980 470

^ 2023(2) ALT 633 (S.B.)

George Varqhese and another vs. The Bank of Cochin (1) AIR 1980 SC 470. at para Nos. 10 and 11 held as under:

M

To cast a person in person because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful 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. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. As such, even though at any time after the passing of an old decree the judgment- debtor might have come by some resources but had not discharged the decree, he cannot be detained in prison under Section 51 read with Order 21 Rule 37 CPC, if at the later point of time he was found to be penniless. However, 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 emphasises 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 considerations of the debtor's other pressing needs and straitened circumstances will play prominently."

6. In the revision petition on hand, it is an admitted fact that the decree-holder did not produce any evidence establishing that the 1st respondent/judgment-debtor has nieans to

discharge the decree amount, except pleading that he is an Advocate, practising at Palasa. Therefore there is no

material which would show that the Trial Court exercised the

jurisdiction illegally or with material irregularity. In that view of the matter, this Court does not find any ground to interfere with the Order of the learned Trial Judge."

9. On the other hand, Ms Marella Radha, the learned counsel for the respondent/DHr contended that when the DHr discharged initial burden that JDr has sufficient means by running the rice and dall mill, it is for the JDr to establish that the mill is not being run and was closed as contended, but JDr failed to discharge the burden .by filing any document to that effect and therefore, the execution Court allowed the

petition.

10. The learned counsel for the respondent placed reliance on the decisions of this High Court in 1) Konda Subbaiah Vs Yedoti

Kamalakshaiah^ and 2) Kollati Narasimha Swamy Vs Bommidi Subba Rao'*

In 1) Konda Subbaiah (supra ) at paras 8 & 9 held as follows;

"8. Coming to the plea of small farmer, raised by the respondent, it needs to be noted that though such plea can be raised even at the stage of execution, the burden to prove it.

^ 2008(6) ALD 290

CRP No.6202 of 2018 dated 21.03.2022

CRP No.17 of 2023 Id

squarely rests upon the person, who raises the plea. It has to be proved though oral and documentary evidence. A judgment-debtor cannot be extended the luxury of taking the plea and sitting in cool.

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 be at stake. The facilities created by Law, in favour of judgment-debtors, can certainly be extended to them, but not just for the asking of it."

In 2) Kollati Narasimha Swamy (supra) at para 10 held as follows:

"10. In this context, it is pertinent to refer to the decision of this Court in V.Balachandra Naidu v. Dr.V.Gurubhushana Naidu 2,

wherein, relying on the previous decision of this Court in Aluru Venkata Rao v. Kodali Venkata Sri Krishna [1994(3) ALT 5381. in which the decision of Jolly George Varahese and

another v. The Bank of Cochin fsuoral was followed, observed that if the decree holder is able to produce some material or evidence regarding the source or means of the judgment debtor that may normally be sufficient to pay the

decretal amount and also the status, occupation, and the

assets of the judgment debtor, then whether such means or source etc are not sufficient to pay the decretal amount being a fact especially within the knowledge of the judgment debtor, the burden of proving the same would be on the judgment debtor in view of Section 106 of the Evidence Act."

11. Though the petitioner has taken the ground that there is no personal decree against PW.1 and that the decree against the firm cannot be executed against him, no such stand has been taken during the course of arguments and the line of argument is confined to proof of means of JDr sufficient to discharge the decretal debt. Inspite of the contention of the DHr that the mill is functioning and there is sufficient income out of the mill, yet the decretal debt was not discharged, no piece of evidence is placed to establish the specific plea taken by the JDr that the mill was closed, In fact, it is the JDr who can place evidence that the mill was closed before or after passing the decree.

Here it is pertinent to mention illustration (d) to Section 114 of the Indian Evidence Act, which reads as follows;

"114. Court may presume existence of certain facts.--The \ % Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

(d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence"

12. As such, in the present case, since si the DHr has discharged the initial burden of proving the existence of the mill, it is for the JDr to establish that the mill was closed and. no income is derived out of the same. In the decision in Md.Phayaz Ahammad @ Ganni (supra) relied by the petitioner, except the fact that the JDr was a practicing advocate no evidence was placed and, therefore, in the light of the facts and circumstances in that case, this Court held that means were not proved.

13. The facts and circumstances in this case, since si are different the JDr cannot take aid of it to the present case for the purpose of evaluation of the evidence placed to prove the sufficiency of the means to discharge the decretal debt. This court does not see any illegality or irregularity in the order i in respect of appreciation of the evidence on record.

14. As such, there is no merit in the revision petition.

15. In the result, the revision petition is dismissed. There shall be no order as to costs.

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

SD/-M.SRINIVAS

ASSISTANT REGISTRAR //TRUE COPY//

SECTION OFFICER To,

1. The Principal Senior Civil Judge, Tenali, Guntur District.

2. OneCCto SRI. VV L N SARMAAdvocate [OPUC]

3. One CC to Smt. MARELLA RADHA Advocate [OPUC]

4. Three CD Copies %

HIGH COURT

DATED:24/06/2024