Addanki Sangaiah vs Addanki Venakteswalu/Pedda ...
2022 Latest Caselaw 5832 Tel

 THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY

                       C.R.P.No.645 OF 2018
ORDER:

This civil revision petition under Section 115 C.P.C is directed

against the order dated 08.09.2017 in E.P.No.248 of 2012 in

O.S.No.769 of 2006, on the file of the Principal Junior Civil Judge,

Khammam, wherein the said petition filed by the petitioner herein

under Order XXI Rule 37 CPC to commit the judgment debtor to

civil prison for realization of the EP amount, was dismissed.

2. Heard learned counsel for the petitioner. None appeared for

the respondents. Perused the record.

3. The petitioner herein filed O.S.No.769 of 2006 before the

II-Additional Junior Civil Judge, Khammam for perpetual injunction

against the respondents. The said suit was decreed on 18.06.2007.

The petitioner filed E.P.No.248 of 2012 under Order XXI Rule

37 CPC to commit the judgment debtor to civil prison for

realization of the decretal amount. The executing court dismissed the

execution petition after conducting due enquiry and holding that

there is no evidence regarding interference caused by the judgment

debtors with possession of the decree holder over the schedule

property.

4. Learned counsel for the petitioner submits that the court

below had committed error in dismissing the execution petition

holding that the decree holder failed to substantiate his possession

over the schedule property. Learned counsel further submits that the

executing court should not have gone beyond the decree and the

executing court committed jurisdictional error in holding that the

decree holder failed to prove his possession over the EP schedule

property and that the revision is liable to be set aside. Learned

counsel placed reliance on the decision of the Apex Court in

RAHUL S SHAH v. JINENDRA KUMAR GANDHI & ORS.,

and also an unreported decision of this court in C.R.P.No.575 of

2011.

5. Section 51 and Order XXI Rule 37 CPC provides for arrest of

a judgment debtor, in the event of his failure to discharge the

obligation, despite possessing adequate means.

6. In KASI SUBBAIAH MUDALI v. KASI VEERASWAMY

MUDALI1, (supra), this Court had an occasion to delve into the

procedure prescribed under Order XXI, Rule 37 C.P.C., and the

importance of various steps provided therein, in the matter of arrest.

It was held inter alia as under:

"Para-7. A plain reading of Rule 37 would show that it contemplates 3 situations viz.,

(a) The executing Court shall issue notice calling upon the judgment-debtor to appear before the Court on a date to be specified and show-cause as to why he should not be committed to civil prison. (Rule 37(1)).

(b) The Court can straightaway issue warrant of arrest of the judgment-debtor in case it is satisfied that the delay in issuance of notice under Rule 37 (1) would enable the judgment-debtor to abscond from or leave the local limits of the jurisdiction of the Court, (proviso to Rule 37(1)).

(c) The Court can issue warrant of arrest in case the judgment debtor fails to appear even after the receipt of notice issued under Rule 37(1). (Rule 37(2)).

7. Learned counsel for the petitioner by relying on the decision

RAHUL S SHAH (1 supra) would submit that the executing court

committed error by traveling beyond the decree. At para 25 of the

said decision, the Hon'ble Apex Court held as under:

AIR 2004 AP 518

"These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is otherwise not entitled to".

8. Thus, after considering the above decision and the statutory

provisions stated supra, coming to the instant case, the executing

court while dismissing the execution petition held at para 14 of the

impugned order as under:

"The decree holder though pleaded that he was in possession of E.P schedule property, he has not filed single piece of document to substantiate that he is in the possession of the EP schedule property and in turn admitted that the EP schedule property though fell to his share, the same is cultivated by the judgment in debtors since 2007 onwards. Therefore, when the Judgment Debtors, are in the possession of the EP schedule property, the question of interference by the judgment debtors does not arise. Though P.W.2 deposed in his chief affidavit with regard to the interference caused by the Judgment Debtors over the EP schedule property on 05.07.2012, but he admitted that he do not know the boundaries of the EP schedule property. As such, the

evidence of the P.W.2 is of no use to the Decree Holder when P.W.2 is not having knowledge about the boundaries to the EP schedule property".

9. The executing court has to necessarily follow the procedure

explained above while proceeding with an application under XXI

Rule 37 CPC. It appears from the order impugned that the executing

court had committed error by stating that the decree holder failed to

file a single piece of document to substantiate that he is in possession

of the EP schedule property. When the decree holder is having a

decree of perpetual injunction in O.S.No.769 of 2006 in respect of

the schedule property, he again need not prove by way of oral or

documentary evidence that he is in possession of the property.

The civil court has granted a decree in O.S.No.769 of 2006 by

granting perpetual injunction and directed the respondents-judgment

debtors from interfering with the peaceful possession of the

petitioner-decree holder over the suit schedule property. The decree

holder has to place evidence and also has an obligation to prove his

contention in respect of his plea that the respondents-judgment

debtors have interfered with his possession over the EP schedule

property on 05.07.2012 at 09:00 am.

10. Normally, in execution proceedings otherwise than through

arrest, there is no burden cast upon the decree holder to prove any

other fact. Since the liberty of a citizen is involved, law places a

further obligation upon the decree holder to prove certain facts

as contemplated under Rule 40(1), that too, in the presence of a

judgment debtor. The executing court ought to have exhibited

care and caution to ensure that each step is followed scrupulously.

The executing court apparently committed error by observing at

para 14 as above and the same clearly shows that there was deviation

from the prescribed principles of procedure. The impugned order is

liable to be set aside and the same is, accordingly, set aside.

11. In the result, the civil revision petition is allowed. The matter

is remanded to the executing court for fresh consideration of

E.P.No.248 of 2012 in O.S.No.769 of 2006 after giving opportunity

to both sides and then pass appropriate orders on merits in

accordance with law. There shall be no order as to costs.

12. Miscellaneous petitions, if any pending, stand closed.

_______________________ A.SANTHOSH REDDY, J 15.11.2022 Lrkm