Gubbala Rama Rao vs Kopanathi Suryanarayana

B. Seshasayana Reddy, J.—This civil revision petition is directed against the order dated 21-9-2004 passed in E.P. No. 19 of 2004 in O.S. No. 130 of 2000 on the file of the Principal Junior 3ivil Judge, Narsapur, whereby and thereunder the learned Principal Junior Civil Fudge dismissed the execution petition filed by the Decree-holder seeking arrest and detention of judgment-debtor in civil prison for realization of the decretal debt.

The petitioner is the Decree-holder and the respondent is judgment-debtor in O.S. No. 130 of 2000.

The petitioner laid execution petition for realization of the decretal amount and sought for arrest and detention of the respondent-judgment debtor. It is the case of the decree-holder that the respondent/ judgment-debtor owns Ac. 1-72 cents and derives considerable amount therefrom and thus the respondent-judgment-debtor having sufficient means neglected to discharge the decretal debt and therefore, he is liable to be detained in civil prison.

The respondent/judgment-debtor filed counter contending that he owns "D" form patta land admeasuring Ac. 1-72 cents and he has no means to pay the decretal debt.

On behalf of the petitioner/decree-holder he got himself examined as P.W.I and marked a certificate issued by Sarpanch of Kothota, Mogaltur Mandal as Ex. A.l. On behalf of the respondent/judgment-debtor, he got himself examined as R.W.I and examined two more witnesses as R.Ws.2 and 3.

The Executing Court, on considering the material brought on record and on hearing the Counsel for the parties, recorded a finding that the petitioner/decree-holder failed to prove the means of the respondent/ judgment-debtor and thereby dismissed the execution petition by order dated 21-9-2004. Hence this civil revision petition.

Heard the learned Counsel appearing for the petitioner/decree holder and the learned Counsel appearing for the respondent/judgment-debtor and perused the records.

The learned Counsel appearing for the petitioner/decree holder submits that the respondent/judgment-debtor having admitted of his owning Ac. 1-72 cents of land and conversion of it as fish tank about few years ago is deemed to be in possession of sufficient means to discharge the decretal debt. A further submission has been made that the respondent/judgment-debtor has not discharged his burden of proving no means and thus the order impugned in this civil revision petition is liable to be set aside.

The petitioner/decree holder filed E.P. No. 19 of 2004 for realization of the decretal debt and sought for arrest and detention of the respondent/judgment-debtor. According to him, the respondent/judgment-debtor has Ac. 1-72 cents of land and derives income of Rs. 50,000/- per annum from the said land. Except his self-serving statement, no evidence has been placed on record to prove that respondent/judgment-debtor earns Rs. 50,000/- per annum on the land. Instead the respondent/judgment-debtor examined the Junior Assistant in Mandal Revenue Office, Mogaltur Mandal to show that land possessed by him is "Darkas" land. He also examined one Kollati Suryanarayana as R.W. 2. He testifies that the respondent/judgment-debtor has no means to pay the decretal debt and he is a dependant on his younger son for his livelihood. The Executing Court on thorough analysis of the evidence placed on record recorded a finding that the petitioner/decree holder failed to prove the means of the respondent/judgment-debtor.

The learned Counsel placing reliance on the decision of this Court in Voona Surya Rao Vs. Salina Sarathi and Others, , contends that the burden of proving no means lies on the petitioner/judgment debtor and since the petitioner/judgment-debtor has not discharged the said burden, the Executing Court ought to have granted the relief sought for by the petitioner/decree holder.

Section 51 C.P.C. deals with powers of Court to enforce execution. Proviso to Section 51 is to be noted and it is thus:

Section 51 C.P.C. deals with powers of Court to enforce execution:- Subject to such conditions and limitation as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison (for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section);

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

Explanation:- In the calculation of the means of the judgment-debtor for the purposes of Clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree.

The proviso to Section 51 lays down that where the decree is for payment of money, execution by detention in prison should not be ordered unless the Court is satisfied that judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.

The Supreme Court in Jolly George Varghese and Another Vs. The Bank of Cochin, , held that when the judgment-debtor if once had the means to pay the debt but subsequently after the date of decree, has no such means or he has money on which there are other pressing claims, and no dishonesty or bad faith intervenes the judgment-debtor cannot be confined in Jail for non-fulfillment of his decretal obligation by coercive method.

The respondent/judgment-debtor has taken a specific plea that except Ac. 1-72 cents of land he has no other land. He is able to prove through the evidence of R.W.3 that the land possessed by him is a "D" form land. It is stated by him on oath that he has not getting any income from the lands possessed and that he has no means to pay the decretal amount. The petitioner/ decree holder having asserted the respondent/ judgment-debtor gets income of Rs. 50,000/-per month on the land owned by him failed to place on record any evidence to substantiate it. The Executing Court considered the evidence brought on record in right perspective and recorded a finding that the petitioner/decree holder failed to prove the means of the respondent/judgment-debtor. I do not see flaw in the finding recorded by the Executing Court warranting interference of this Court by exercising the powers u/s 115 of the Code of Civil Procedure.

Accordingly, the civil revision petition is dismissed. No costs.