T. Vasanthamma vs Pattan Usman Saheb

Immaneni Panduranga Rao, J.—The short question that falls for consideration in this revision petition preferred by the decree-holder is whether the executing court has got jurisdiction to direct payment of the decretal amount in instalments in an execution petition filed for arrest of the judgment-debtor.

The petitioner herein obtained a decree for Rs. 23,000/- against the respondent-judgment debtor and filed E.P.No. 79 of 1990 for arrest of the judgment debtor alleging that as an employee in A.P.S.R.T.C. he is drawing a salary of Rs. 1,500/- per month but is evading to pay the amount. The judgment debtor came forward with an untenable defence that the decree-holder has accepted to receive the decree amount in instalments of Rs. 100/- per month from November, 1989 ; that he has accordingly paid the instalments of Rs. 100/- per month till February, 1990 and that thereafter, the decree-holder refused to receive the instalments. He has also stated that he has to maintain a big family of seven members consisting of all daughters ; that he is the only bread winner of the family and that as such he has no means to pay the decretal amount in a lumpsum.

The decree-holder repudiated the defence plea by deposing that the judgment debtor, as a mechanic, is getting a salary of Rs. 2,500/- per month; that his wife is residing in Kuwait ; that she used to send Rs. 3000/- per month to her husband (the judgment-debtor) and that the judgment debtor''s son is working with an Eye Surgeon and is earning Rs. 500/- per month. The judgment debtor in his cross-examination admitted that he has three daughters and two sons and that one son who is working in Pagadala Opticals is getting a salary of Rs. 600/- per month. The judgment debtor did not deny the statement of the decree-holder that the judgment debtor''s wife has gone to Kuwait. During the course of arguments, the judgment debtor''s counsel contended that Muslims can marry more than one wife ; that the wife who is mentioned in the counter is the second wife and that the first wife of the judgment debtor left for Kuwait. Even assuming that to be correct, that statement of the decree-holder that the wife of the judgment debtor was sending money from Kuwait can be accepted because it is only for earning huge salaries that persons would normally go from India to other countries like Kuwait, etc.

My learned brother Lakshmana Rao, J., held in Jatti Krishnareddy Vs. Bhadri Ramagopalaiah, that the executing court has no power to direct payment of decretal amount by instalments. That is what exactly the learned District Munsif has done in this case. As observed by the learned Judge in J. Krishnareddy''s case (case 1 supra), if the executing court would have got such a power, the object of the period of limitation of 30 days prescribed by Article 126 of the Limitation Act for filing an application for payment of decretal amount by instalments under Order 20 Rule 11 (2) of the CPC would be defeated and it would be open for every judgment-debtor to move the executing court at any stage of the execution proceedings to pay the decretal amount by instalments, which would be contrary to the provisions of Order 20, Rule 11 of the Code of Civil Procedure.

The learned District Munsif has relied upon the decision of Karnataka High Court in K. Karunakar Shetty Vs. Syndicate Bank, Manipal, . In that case, the decree-holder is a Bank, which is a statutory body. The learned Judge observed that the Bank being a statutory body should act with great responsibility in realising its amounts and sending a person to prison is not a fair means of realising the decretal amount while the judgment debtor has a share in the joint family and there is a mode of execution available to the Bank. It is under those circumstances, that the learned Judge held that arrest and detention of the judgment debtor was not called for. The decision of the Supreme Court in Jolly George Varghese and Another Vs. The Bank of Cochin, relied upon by the learned Judge in K. Karunakar Shetty''s case (2 supra) also deals with the Bank of Cochin which is the decree-holder. Even assuming that those two decisions are applicable, this is clearly a case where dishonesty and mala fides on the part of the judgment-debtor to discharge his obligation are clearly established. When the decree is for an amount of Rs. 23,000/-, the judgment-debtor has put forward an absurd plea that the decree holder has agreed to receive the decretal amount in instalments of Rs. 100/- per month. He pleaded a partial discharge by payment of instalments from November, 1989 to February, 1990 which is not supported even by a scrap of paper. He came with a false contention that he has got all daughters and that the entire family is being maintained by his salary only. But it is elicited from him in the cross-examination that his family consists of three daughters and two sons out of whom, one son is employed and is earning Rs. 600/- per month. The evidence of the decree-holder that the wife of the judgment debtor has gone to Kuwait is not denied. On the other hand, the learned counsel for the judgment-debtor tried to argue that it is the first wife of the judgment debtor that has gone to Kuwait. The dishonesty on the part of the judgment debtor to evade payment of the decretal amount as long as possible is evident from his setting up a false plea that the decree-holder has agreed to receive the decree amount in instalments of Rs. 100/- per month which is rightly disbelieved by the learned District Munsif.

Under these circumstances, I hold that the decision of the learned District Munsif directing the judgment debtor to discharge the decree debt in instalments of Rs. 500/- per month is wholly without jurisdiction and is liable to be set aside.

The civil revision petition is accordingly allowed at the stage of admission setting aside the order of the learned District Munsif in E.P.No. 79 of 1990. However, the issuance of arrest warrant is postponed by three months from today. If the judgment debtor does not pay the entire decretal amount on or before 30th April, 1991, the learned District Munsif shall issue the arrest warrant.