IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE TWENTY FOURTH DAY OF JUNE TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.1332 of 2007 Between:
B. Ramaswamy .. Petitioner AND Sri Ramalayam, Juvvalapalem rep. by its Manager, Juvvalapalem, Tadepalligudem, Tadepalligudem (M), West Godavari District and others .. Respondents Petition against the order passed in E.P. No.68 of 2006 in O.S. No.6 of 1993 on the file of the Principal Junior Civil Judge, Tadepalligudem, dated 24-01-2007.
The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri V.V.L.N. Sarma, Advocate for the petitioner, the Court made the following:
ORDER:
Heard Sri V.V.L.N. Sarma, learned counsel for the revision petitioner.
This revision petition is directed against the order of the executing Court/Principal Junior Civil Judge’s Court, Tadepalligudem in E.P. No.68 of 2006 in O.S. No.6 of 1993, dated 24-01-2007. The execution petition was filed for realization of the decree debt by ordering arrest of the 1st judgment debtor and committing him to civil prison and the 1st judgment debtor contested the same claiming to be having no means apart from other grounds. After recording the evidence of P.W.1 and R.W.1 during the enquiry, the executing Court passed the impugned order referring to the admissions of the 1st judgment debtor as R.W.1 about his doing coolie work and earning Rs.100/- or Rs.50/- or Rs.125/- per day respectively depending on the demand and necessity. The executing Court felt that hale and healthy and able-bodied judgment debtor is capable of earning money by doing coolie work and cultivation on lease and is having means to discharge decree debt and therefore, directed the 1st judgment debtor to pay the execution petition amount within one month, failing which a warrant of arrest should be issued against him.
In this revision, the challenge to the said order was also on the ground that he was not the cultivating tenant or cultivator during the relevant period and therefore, cannot be made liable for decree debt. It is also contended that his living as an agricultural coolie could not have been considered as proving sufficient means to discharge the decree debt.
Pending the revision, this Court directed, while granting interim stay in C.R.P.M.P. No.1741 of 2007 on 09-04-2007, the petitioner to deposit one-third of the execution petition amount within three weeks from the date of the order.
The only point for consideration is whether the order of the executing Court is not based on the material on record ?
Point:
It is seen from the copy of the execution petition that an amount of Rs.41,672/- apart from the costs of the decree and costs of execution were due by the time of filing of the execution petition. The 1st judgment debtor/revision petitioner herein in his counter tried to contend that he was maintaining himself on the mercy of the nearest relatives, while he was liable to maintain his wife, children and aged parents. He was claiming that he was spending huge amounts for the medicines of his parents and therefore, he has no sufficient means to discharge the decree debt. He never stated in his counter about his occupation as agricultural labourer or the possible amount he was earning from that occupation. The executing Court specifically referred to the admissions made by the 1st judgment debtor in his evidence about the judgment debtor earning Rs.100/- or Rs.50/- or Rs.125/- per day as agricultural labourer and the conclusion of the executing Court that hale and healthy and able-bodied judgment debtor, capable of earning money by doing coolie work or cultivation, is to be presumed to be having means to discharge the decree debt, cannot be considered divorced from the material on record, more so when it is based on the admissions of R.W.1 and not even the claims of P.W.1 denying the want of means claimed by the 1st judgment debtor.
It is seen from Section 51 of the Code of Civil Procedure that in a money decree, the satisfaction of the Court for execution by way of arrest and detention should be about the means of the judgment debtor either to pay the amount of decree or some substantial part thereof and refusal or neglect to do so. Therefore, it is not as though the decree holder has to prove the capacity of the judgment debtor to pay the entire decree debt and in the light of the admissions of the 1st judgment debtor as R.W.1 and in the light of the execution petition having been filed about two years after the decree, it can be presumed from the ordinary and natural course of human events that if the 1st judgment debtor had made genuine efforts, he could have paid from time to time a substantial portion of the decree debt by the time of the execution petition.
Any how the impugned order was passed on 24-01-2007 and at this distance of time, before straight away ordering the revision petitioner to be arrested and detained in civil prison, it will be in the interests of justice to direct the executing Court to once again give a notice to the 1st judgment debtor under Order XXI Rule 37 of the Code of Civil Procedure and secure his presence before the Court and thereafter proceed in accordance with law, in case of failure of the 1st judgment debtor either to appear before the Court or to discharge the decree debt. Before issuance of such notice, the revision petitioner can also be granted three months time to make efforts and discharge the decree debt without subjecting himself to further proceedings in execution. Such equitable order can be passed in exercise of the inherent jurisdiction of this Court under the Code of Civil Procedure, more so when the decree holder has not entered appearance before the Court in spite of service of notice of the revision.
Therefore, while confirming the order passed in E.P. No.68 of 2006 in O.S. No.6 of 1993 on 24-01-2007 by the Principal Junior Civil Judge, Tadepalligudem, the revision petitioner/1st judgment debtor is granted three months time from today to discharge the decree debt and in case of default, the executing Court shall issue fresh notice under Order XXI Rule 37 of the Code of Civil Procedure to the said judgment debtor/revision petitioner for appearance before it and proceed thereafter in accordance with law in execution of the decree in question against the revision petitioner. The civil revision petition is ordered accordingly. No costs.
G. BHAVANI PRASAD, J Date: 24-06-2010 Svv