THE HON'BLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION No.1461 of 2007 Date:18.10.2014 Between:
Vaka Anjalidevi . Petitioner.
AND Vaka Reddankaih (died) Vaka hari Prasad and others.
. Respondents.
The Court made the following:
THE HON'BLE SRI JUSTICE S. RAVI KUMAR CIVIL REVISION PETITION No.1461 of 2007 ORDER:
This revision is preferred against orders dated 20-12-2006 in E.P.No.65/2005 in O.S.No.103/2002 on the file of Principal Junior Civil Judge, Repalle. The petitioner herein is Decree Holder in O.S.No.103/2002 and the respondents herein are the Judgment Debtors.
2. The E.P was filed before the trial Court under Order 21 Rule 37 CPC for arrest of the Judgment Debtors for non- payment of the mesne profits. Trial Court conducted enquiry during which, one witness was examined on behalf of Decree Holder, whereas on behalf of Judgment Debtors, eight witnesses are examined and two documents are marked and on a consideration of oral and documentary evidence, the trial Court found that Decree Holder failed to prove, that the Judgment Debtors have got sufficient means to discharge the mesne profits decree and intentionally avoided payment. Aggrieved by the dismissal of the E.P, Decree Holder preferred present revision.
3. Heard both sides.
4. The main contention of the revision petitioner is that Judgment Debtors got property in the partition under the very same decree and one of the Judgment Debtors is an employee working as Teacher and drawing a salary of Rs.10,000/- per month and got capacity to discharge the decree amount, but intentionally and wilfully avoided payment. It is further contended that though there is evidence to show that Judgment Debtors have got lumpsum amount, the trial Court has not ordered for arrest of the Judgment Debtors and thereby, committed error.
5. On the other hand, learned counsel for respondents submitted that trial Court, by considering the evidence of R.Ws.1 to 8, held that there is no lumpsum amount with the Judgment Debtors to pay the mesne profits decree and that the trial Court has not committed any error in dismissing the E.P for arrest.
6. Now the point that would arise for my consideration in this revision is whether E.P.No.65/005 in O.S.No.103/2002 on the file of Principal Junior Civil Judge, Repalle is liable to be set aside or not?
7. Point:-There is no dispute with regard to partition decree and subsequently mesne profits decree. According to Decree Holder, the Judgment Debtors are receiving income from the lands that were allotted to their share at the rate of Rs.60,000/- per year, besides the second defendant as a Teacher was drawing a salary of Rs.10,000/- per month, therefore, they have got lumpsum amount. On behalf of Judgment Debtors, the tenants who cultivated the land, were examined as R.Ws.2 to 6 and considering their evidence, the trial Court observed that there was no income from the properties that were allotted to the Judgment Debtors in the partition. Though Decree Holder contended that Judgment Debtors have got lumpsum amount of Rs.53,696/- i.e., the decretal amount to discharge the decree debt, they wilfully avoided to pay. No evidence is produced to show that the second defendant was in possession of lumpsum amount, which is sufficient for discharge of the decretal amount. One of the contentions of the Advocate for Decree Holder is that Judgment Debtors have got sufficient properties from which they are realising income. As per Order 21, a Decree Holder can proceed simultaneously against property and person by obtaining necessary permission from the Court and if really, Decree Holder is interested in realising the amount, he can as well proceed against the properties of the Judgment Debtors and realise the decretal amount. If the Decree Holder has taken this step simultaneously along with this E.P., I think by this time, he would have realised the fruits of the decree, without any hurdle. In order to send a Judgment Debtor to civil prison, the primary burden is on the Decree Holder to show that the Judgment Debtor has got liquidated cash on hand to discharge the decretal amount and failed to pay that amount wantonly. As seen from the evidence, Decree Holder has not placed any material to show that the Judgment Debtors were in possession of liquidated cash of Rs.53,696/- as on the date of filing of the E.P., therefore, as rightly observed and pointed out by the trial Court, the Decree Holder has failed to prove the means of the Judgment Debtors for discharge of the decretal amount in lumpsum.
8. On a scrutiny of the material on record, I do not find any error committed by the trial Court either in appreciating the evidence on record or in denying relief of arrest of the Judgment Debtors.
9. For these reasons, I am of the view that there are no merits in the revision and the same is liable to be disposed of. However, this order does not preclude the Decree Holder in executing the decree by proceeding against the property and person simultaneously afresh provided it is not barred by limitation. No costs.
10. As a sequel, miscellaneous petitions, if any, pending in this Civil Revision Petition, shall stand disposed of.
JUSTICE S. RAVI KUMAR
Date:18.10.2014 mrb