Kikkisetti Pandu Ranga Rao vs Boorla Naga Venkata Satyanarayana

C.Y. Somayajulu, J.—Revision petitioner obtained a money decree against respondent and filed an execution petition seeking arrest of the respondent inter alia contending that the respondent having sufficient means and capacity to pay the amount is evading to pay the amount covered by the decree. Respondent filed a counter inter alia contending that he has no means to pay the decree debt. In support of his case, the revision petitioner besides examining himself as P.W.1 examined another witness as P.W.2 and marked Exs.A.1 and A.2. In support of his case, the respondent examined himself as R.W.1 and marked Ex.B.1. By the order under revision, the executing Court held that the revision petitioner failed to establish that the respondent has sufficient means as on the date of decree or subsequent thereto and has been refusing or neglecting to pay the decree debt and dismissed the execution petition. Hence, this revision.

The contention of the learned Counsel for revision petitioner is that since the evidence adduced by the revision petitioner clearly establishes that the respondent having sufficient means is delaying and refusing to pay the amount, the executing Court was in error in dismissing the petition. The contention of the learned Counsel for the respondent is that since the executing Court gave cogent reasons for its conclusion and as the evidence on record also shows that the respondent does not have any other property except a house and Acs.0-40 cents of land which is under attachment, and as his house is exempt from attachment in view of the ratio in Saratchandra, Padhyannadange Vs. Gudiya Eswara Rao, , the revision petitioner is not entitled to seek arrest of the respondent.

Revision petitioner filed the suit against the respondent and his sons basing on a promissory note dated 11-8-1996 executed by the respondent in his favour for Rs. 33,000/- agreeing to repay the said amount with interest at 18% per annum seeking a personal decree against the respondent, and a degree against the joint family properties of the respondent and his sons. After contest the trial Court passed a decree only against the respondent and dismissed the suit against the sons of the respondent.

The case of the revision petitioner is that the respondent has Acs.4-00 of land with a bore well and Acs.2-00 of lime garden and a big house at Veerampalem Village and earns about Rs. 2,00,000/- per year and does business in cattle and milk and that he also owns a bullock cart and lets it on hire and had in fact settled some of his lands on his wife under a registered settlement deed dated 7-12-1998 and though he created a deed of partition between him and his sons he in fact is in possession and enjoyment of the entire joint family property and that that partition is created only with a view to delay execution of the decree and produced Ex.A.1 Encumbrance Certificate and Ex.A.2 certified copy of the settlement deed dated 22-2-2003 executed by the wife of the respondent in favour of the daughter of the respondent containing a recital that the property being gifted to the daughter by her was gifted to her (i.e., the donor) by her husband i.e. the respondent through a registered settlement deed dated 7-12-1998.

The case of the respondent is that his joint family was possessing only Acs.2-19 cents of dry land in R.S. No. 124/1 of Kunavaram Village and as he was not prudently managing the joint family property, he, at the intervention of the elders of the village and his relatives, partitioned the property between him and his children on 1-4-1999 as per which his share came to Acs.0-40 cents only and that he is in possession and enjoyment of that land only and is living separately in a room in the ancestral house and is cooking his own food and as his income is only Rs. 4,000/- per year he is not in a position to discharge the decree debt and in fact the entire Acs.2.19 cents of land of the erstwhile joint family is under attachment under several decrees, and as the suit against his children is dismissed, and in view of the partition between him and his children and since nobody is prepared to lend him money, he is not liable to be arrested. He denied his being in possession of Acs. 6-00 of land or lemon garden and his doing business in milk or owning a bullock cart and stated that the marriage of his daughter was performed by his father-in-law and that he came to know that his wife gifted some land to his daughter at the time of her marriage.

Though respondent did not take a specific plea in his counter that his house is exempt from attachment, as he is using it for storing the implements of agriculture etc. the executing Court, relying on Saratchandra''s case (supra), held that the house of the respondent is exempt from attachment. A Division Bench of this Court in Ollala Ambiah Vs. Avadhanula Mallanna, , held that the intendment of Clauses (b) and (c) of Section 60 CPC is to give protection to persons who are real tillers of the soil and who depend upon agriculture for their living, and that it is necessary that there should be a nexus between the house on the one hand and agriculture on the other, in order to claim the benefit of those clauses. In view of the ratio in the Division Bench decision of this Court, only in case the implements being used or may be used for agricultural purposes stored in the house only, can the tiller of soil, claim exemption from attachment of that house u/s 60(1)(c) CPC. In fact in K. Krishnaveni v. P. Pitchaiah 1988 (2) ALT 35, it is held that the judgment-debtor has to raise an objection and prove that the house sought to be attached and sold in execution is exempt u/s 60(1)(c) CPC.

In the long counter filed by him in the execution petition, respondent did not claim exemption of the house belonging to him, nor did he allege that there is a nexus between his house and his agriculture. In his affidavit filed in lieu of the chief-examination also he did not allege that the house in his occupation is exempt from attachment, and so it cannot be taken into consideration for deciding whether he has means or not. Yet, the executing Court in Para 17 of the order under revision held the house of the respondent is exempt from attachment observing:

the burden lies on the decree-holder to show that the property which is said to constitute means alleged to be possessed by the judgment-debtor is not of the kind which is not liable for attachment under proviso to Section 60 of CPC as clarified under explanation to Section 51 of CPC.

and drew support from the observations in Jolly George Varghese and Another Vs. The Bank of Cochin, , reading:

The simple default to discharge the decree, is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.

The view taken for dismissing the E.P. by the executing Court that the burden of proof is on the decree holder to show that the property possessed by the judgment-debtor is not of the kind which is not liable for attachment u/s 60 CPC, is contrary to the ratio in Ambaiah''s case (supra) and Krishnaveni''s case (supra). In fact it is for the respondent to plead and establish that inasmuch as the house in his possession is exempt from attachment, it cannot be taken into consideration for deciding his means to discharge the decree debt. In this case, respondent did not take any such plea either in his counter or during the course of his evidence.

Respondent, who took a specific plea in his counter that he is living in a room separately from his children and wife and is cooking his food, stated during cross-examination that his wife and other minor children are living with him and that his wife being the guardian of his children has been looking after the agriculture work on behalf of his minor children. So, it is clear that the plea taken by the respondent in his counter in that regard is not correct.

The suit promissory note was executed by the respondent on 11-8-1996. Respondent claims that there was a partition between him and his minor children in 1999 i.e. after the contracting of the debt covered by the suit promissory note. It is well known that the share in the joint family property allotted to the sons by their father also can be proceeded against by the creditor for recovery of the pre-partitioned debts, ignoring the partition even in a decree obtained against the father alone. So, merely because the father effects a partition between him and his sons after contracting a debt, the creditor does not lose his right to proceed against the property allotted to the share of sons also in execution of the decree obtained by him against the father in respect of a pre-partitioned debt whether he made the minor sons parties to the suit or not. Therefore, question whether there was partition between the respondent and his sons is not very relevant for the purpose of deciding this revision, but as the specific case of the respondent is that Acs.2-19 cents in S. No. 124/1 is under attachment in several suits filed against him, that property of Acs.2-14 cents cannot be taken into consideration for deciding his means, as he cannot raise money on the said property.

Now it has to be seen whether apart from the house, respondent has any other property or source of income. From item No. 22 of Ex.A.1 (Encumbrance Certificate produced by the revision petitioner), it is seen that an extent of Acs. 1-42 cents in S. No. 118/4 of Kunavaram Village was purchased by the respondent from Subbareddy Muppidi and Gangaraju Muppidi under a document dated 28-5-1996. So, it is clear that the respondent also is the owner of Acs.1-42 cents in S. No. 118 of Kunavaram Village. Significantly, the respondent did not state anything about the said extent of land.

The case set up by the respondent in his counter that he, not being a prudent man and as he was unable to manage the joint family property, affected a partition, prima facie appearance to be not true because respondent admittedly was the Sarpanch of the village by the date of contracting the debt from the revision petitioner, because during cross-examination he stated that he was Sarpanch of the village for 5 years and was the Sarpanch even when the suit was pending. He also stated that his father was the owner of Acs. 15-00 of land and that he performed the marriage of his daughter after the suit, was decreed. Significantly, he denied the suggestion that the land settled by him on his wife in 1998 was given to his daughter at the time of marriage, though Ex.A.2 (copy of the gift deed executed by the wife of respondent in favour of their daughter) contains the recital that the property that being gifted under that document was gifted to the donor by the respondent on 7-12-1998. The above statement of his and his plea in the counter that he is living separately from his children and wife which stood belied by his evidence in cross-examination. So it is clear that respondent is a person who has no respect for truth and makes statements to suit the situation. The evidence of P.W.2 supports the version of the revision petitioner as P.W.1 that the respondent does business also, and takes the lands of others on lease and is earning considerable amount. Except baldly stating that as P.W.2 is a man in the hands of the revision petitioner, he gave a false evidence, nothing was elicited during the cross-examination of P.W.2 to disbelieve his evidence.

Thus the evidence on record establishes that the respondent besides owning a house and Acs.0-40 cents as admitted by him also has Acs. 1-42 cents in S. No. 118 of Kunavaram as disclosed by item No. 22 of Ex.A.1. The respondent having sufficient means is trying to avoid and delay payment of the debt due to the revision petitioner by taking false pleas so I am of the considered opinion that the executing Court was in error in dismissing the execution petition of the revision petitioner.

For the above reasons the revision is allowed with costs. The order of dismissal of Execution Petition passed by the executing Court is set aside. The executing Court shall issue a warrant for arrest of the respondent and take further steps in accordance with law.