Pankerla Devuni Venkataiah vs Merugu Ramesh
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Telangana High Court

Pankerla Devuni Venkataiah vs Merugu Ramesh on 4 April, 2025

Author: T. Vinod Kumar

Bench: T. Vinod Kumar

     THE HON'BLE SRI JUSTICE T. VINOD KUMAR

        CIVIL REVISION PETITION No.854 of 2025

ORDER:

This Civil Revision Petition is filed under Section 115

C.P.C. against the order dated 04-03-2025 passed in E.P.No.9 of

2023 in O.S.No.600 of 2023 on the file of the I Additional Junior

Civil Judge Court at Nalgonda.

2. The petitioner herein is the Judgment-Debtor (J.Dr.) and

defendant in the E.P. as well as in the suit filed by the respondent

herein as plaintiff/Decree-Holder (D.Hr).

3. The above mentioned suit was filed for recovery of money

basing on promissory notes. The aforesaid suit filed by the

respondent herein was decreed ex parte on 11-07-2022.

4. The respondent/D.Hr, after obtaining ex parte order in the

aforesaid suit filed by him, had filed the underlying Execution

Petition under Order XXI Rule 11(2) C.P.C. claiming that

though the petitioner/J.Dr. is having sufficient means to pay the

decretal amount to the respondent herein, but is intentionally not

paying the same and did not abide the orders of the Court.

5. The respondent further claimed that since the petitioner

herein failed to satisfy the decree, it is necessary to put him in

civil imprisonment for realization of the decretal amount as per

Order XXI Rule 37 C.P.C.

6. Petitioner contends that the trial Court had issued notice of

the aforesaid petition filed, to which he had filed; that the

respondent/D.Hr. had examined himself; and that Court

thereafter had passed the impugned order allowing the

underlying Execution Petition directing the petitioner herein to

be detained in civil prison for a period of three months.

7. Petitioner contends that the trial Court while allowing the

aforesaid Execution Petition, did not record any finding as to the

means of petitioner to satisfy the decree and despite the same

petitioner avoiding to pay the decretal amount.

8. It is the further case of the petitioner that despite the

petitioner filing counter to the Execution Petition claiming that

only after moving the Execution Petition against the properties

held by the petitioner/J.Dr. in order to recover the decretal

amount, the Execution Petition for arresting the J.Dr. and

sending him to civil prison is maintainable and the respondent

without taking any steps, has straightaway filed underlying

Execution Petition for sending the petitioner/J.Dr. to civil

imprisonment in terms of Order XXI Rule 31 CPC and the trial

Court also erred in allowing the said application and seeks for

setting aside the same.

9. Per contra, learned counsel for the petitioner contended that

the petitioner, despite having means to satisfy the decree, has

failed to pay the same.

10. On behalf of the respondent, it is further contended that the

petitioner never pleaded in the suit nor in the Execution

proceedings of he not having means to satisfy the decree, and

thus, the claim now made before this Court of petitioner not

having means to pay the decree amount is only to evade the

payment due under the decree and to get over the order directing

civil imprisonment.

11. I have taken note of respective contentions urged.

12. Before adverting to respective contentions, it is important to

note that in an Execution Petition filed under Order XXI Rule 37

r/w Section 51 CPC, the burden is the on the D.Hr to satisfy the

Court that the respondent/J.Dr. despite having means to pay the

decretal amount, has failed to discharge the liability under the

decree for the Court to order for civil imprisonment. The order

of J.Dr. to civil imprisonment for not satisfying the decree

should be the last resort, as the same violates his fundamental

right to life.

13. In the facts of the present case, the respondent herein by

filing the underlying Execution Petition under Order XXI Rule

11(2) CPC except stating that the petitioner/J.Dr is having

sufficient means to pay the decretal amount and is intentionally

not paying the same, did not disclose as to the means by which

the petitioner could have satisfied the decree. Even in the cross-

examination of respondent by the petitioner, the respondent

admitted to the fact that he having not filed any document to

show that the petitioner/J.Dr. has got properties in his name,

except denying the suggestion put to him of the petitioner/J.Dr

not having any financial capacity to repay the loan taken by him,

for which a decree has been passed. The trial Court also did not

record any finding as to the properties held by the petitioner,

thereby having means to pay and having failed to satisfy the

decree.

14. Before ordering detention of a person in civil prison for

execution of a decree, the procedure contemplated under Order

XXI Rule 37 to 40 C.P.C. has to be necessarily followed by the

Court as mandated under Section 51 C.P.C. Though, in the facts

of present case, the trial Court having issued notice to the

petitioner/J.Dr. in terms of Order XXI Rule 37 C.P.C. and the

petitioner having filed his counter-affidavit thereto opposing the

same, the trial Court failed to follow the subsequent procedure

while allowing the underlying Execution Petition.

15. In Kasi Subbaiah Mudali Vs. Kasi Veeraswamy Mudali1

the erstwhile High Court of Andhra Pradesh has detailed the

procedure prescribed under Order 21 Rule 37 CPC in the matter

of arrest, and held as under:

" 7. xxx

Para-7. A plain reading of Rule 37 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)).

AIR 2002 NOC 118(AP)

(b) The Court can straightway 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)).

Para-8. Further steps to be taken after the appearance of the judgment-debtor either voluntarily or on being brought before the Court after arrest are provided under rule 40.

Para-9. According to this Rule, once the judgment-debtor appears before the Court in obedience to the notice or, brought before it on being arrested, the Court shall proceed to hear the decree-holder and take all evidence in the presence of the judgment-debtor. The judgment-debtor shall be given an opportunity of showing cause why he should not be committed to civil prison. Rule 40 contemplates almost an uninterrupted enquiry in the matter. That is the reason why it provides for detention of the judgment-debtor in the custody of an officer of the Court or releasing on furnishing security pending conclusion of the enquiry under sub-rule (1). Any order of arrest to be made after conclusion of the enquiry under sub-rule (1) of Rule 40, is once again subject to Section 51, C.P.C."

Further, the Court in the aforesaid decision while referring to the

procedure under Order XI Rule 37 CP.C. in para-14 held :

8. The consequences of any deviation from the procedure were explained in para 14, as under:

Para-14. Arresting of the judgment-debtor and sending him to civil prison is a matter touching the personal liberty, even if it is a step in a civil proceedings. Notwithstanding the difference as to the cause of deprivation of the liberty of the person, C.P.C. ensures the proper protection of the personal liberty. That is why several precautions are provided, before the liberty of a person deprived. Rule 40, in categorical terms insists that when a person appears before the Court in response to a notice or, is before the Court, on having been arrested in pursuance of a warrant, the Court shall examine the decree-holder in the presence of the judgment-debtor. The decree-holder will be placed under obligation to prove his contention in respect of the plea raised by him in the execution petition. Normally, in execution proceedings otherwise than through arrest, there is no burden cast upon Page: 520 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 other provisions contained in Rule 40 as well as the provisions of Sections 51 and 55 of the C.P.C. add strength to these provisions. In a way, those provision in their cumulative effect, ascribe an element of criminal trial, to the proceedings under Rule 11-A of Order 21 of C.P.C."

16. The aforesaid decision laying down the procedure has been

referred to by the erstwhile High Court of Andhra Pradesh in

K.Harikrishna Vs. Dr.L.Raghunatha Rao & Ors. 2

2004 SCC OnLine AP 447

17. By applying the above judgments of the erstwhile High

Court of Andhra Pradesh is applied to the facts of the case, the

same discloses that the trial Court did not conduct enquiry as

mandated under Rule 40 C.P.C. by recording a finding as to the

means of the petitioner to satisfy the decree, despite which the

petitioner/J.Dr. failing to satisfy the decree requiring the Court to

pass an order of arrest of petitioner/J.Dr. in civil imprisonment

by exercising power under Section 51 C.P.C.

18. On the other hand, a reading of the impugned order would

show that the trial Court on issuing notice to the petitioner of its

intention to proceed under Order XXI Rule 37 CP.C., had

straightaway passed the impugned order noting that the

petitioner/J.Dr. had willfully failed to obey the order dated

11-07-2022, even though he had an opportunity to obey the

decree and the same is established by respondent/D.Hr by his

unchallenged testimony, without the respondent/D.Hr. bringing

on record as to the means processed by the petitioner/J.Dr. to

satisfy the decree. Thus, the order of the trial Court in allowing

the underlying Execution Petition and directing the petitioner be

detained in civil prison for a period of 3 months, cannot be said

as having been passed confirming to the mandatory requirements

of Order XXI C.P.C. On the other hand, since the impugned

order of the trial Court discloses that there is clear deviation/not

adhering to the mandatory steps/procedure contemplated under

Section 51 and Order XXI of CPC. Thus, this Court is of the

view that the impugned order cannot be sustained.

19. Accordingly, the impugned order dated 04-03-2025 passed

in E.P.No.9 of 2023 in O.S.No.600 of 2023 is set aside, and the

matter is remitted back to the trial Court for fresh consideration

strictly in accordance with the procedure prescribed under

Section 51 r/w Order XXI C.P.C.

20. Subject to above direction, the Civil Revision Petition is

allowed. No costs.

21. As a sequel, miscellaneous petitions pending if any shall

stand closed.

____________________ T. VINOD KUMAR, J Date: 04.04.2025 Vsv