Moguluru Eswaraiah vs Gollapalli Venkataramaiah

C.Y. Somayajulu, J.—In a decree for recovery of money obtained by him against the revision petitioner, respondent filed an execution petition seeking arrest of the revision petitioner. Overruling the objections raised by the revision petitioner, the executing Court ordered arrest of the revision petitioner. Hence this revision petition.

The main contention of the learned counsel for petitioner is that since revision petitioner has no means to discharge the decretal amount, the executing Court ordering his arrest without regard to Rule 37 of Order 21 C.P.C. is improper. He faintly contended that the executing Court was also in error in ordering the arrest of the revision petitioner even without issuing a notice to him in the E.P., and ultimately made a request for grant of time for payment of the E.P. amount.

Since revision petitioner filed counter in the E.P., his contention that he had no notice of the filing of the E.P., has no substance. The documents produced by the revision petitioner show that the decree put in execution in 2004 was passed on 30-12-2003 and so there is no need to issue notice under Rule 22 of Order 21 C.P.C. to the revision petitioner. So it is clear that revision petitioner filed the counter in the E.P. for the notice under Rule 37 of Order 21 C.P.C. served on him.

The other contention relates to means of the revision petitioner. In the affidavit filed along with the execution petition, respondent clearly alleged that the revision petitioner, in spite of his earning about Rs. 1,00,000/- per year on agriculture and other properties is neglecting and refusing to pay the decretal amount to him. In the counter filed by the revision petitioner, he did not dispute or deny that statement of the respondent. The only plea taken by him in his counter is that he is not liable to pay the amount claimed in the E.P. as he discharged the entire debt even before filing of the E.P.

Since revision petitioner did not take a plea that he has no means to pay the E.P. amount, and had also not contraverted the statement on oath made by the respondent that he, who is having an income of more than one lakh per year from agriculture and other properties, is neglecting or refusing to pay the decretal amount, it has to be taken that the averments in the affidavit of the respondent are true and so it is clear that the executing Court ordered arrest of the revision petitioner only after taking into consideration the relevant provisions relating to the arrest of a judgment debtor in execution of a money decree.

The other contention of the revision petitioner relates to his discharging the decretal amount even prior to the filing of the E.P. No evidence either oral or documentary is adduced by the revision petitioner to show that he discharged his obligation under the decree obtained by the respondent. Rule 2 of Order 21 C.P.C. contemplates certification of payments made out of Court, by the Court. As per Article 125 of Limitation Act, 1963, limitation for such certification is thirty days from the date of payment. Admittedly revision petitioner did not get certified the payment allegedly made by him. The date(s) of the alleged payment and the amount(s) allegedly paid are also not mentioned in the counter. Since uncertified payments cannot be taken cognizance of by the executing court, court below overruling the objections of the revision petitioner and directing his arrest cannot be found fault with and so I see no grounds to interfere with the order of arrest of the revision petitioner.

Though no instalments can be permitted in a suit for recovery of money at the stage of execution, regard being had to the fact that heavy rains caused damage to several persons in Nellore area recently, revision petitioner is permitted to pay the balance amount due and payable to the respondent as per the decree under execution in two equal instalments. 1st instalment to be paid on or before 1-12-2005 and the second instalment to be paid on or before 2-1-2006. In default in payment of any of the instalments, revision petitioner would be liable to be arrested. The petition is ordered accordingly. It is needless to mention that respondent can withdraw the amounts deposited by the revision petitioner without furnishing any security. Parties shall bear their own costs.