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2001 DIGILAW 363 (AP)

V. Sreenivasulu v. B. Narasimmurthy

2001-04-03

VAMAN RAO

body2001
VAMAN RAO, J. ( 1 ) THIS Civil Revision Petition is directed against the order of the learned Junior Civil judge, Kalyandurg, Ananthapur, dated 1-2-2001 passed in E. P. No. 23 of 2000 in A. P. No. 91 of 1998. ( 2 ) THE decreeholder filed the above said e. P. No. 23 of 2000 under Order XXI rules 37 and 38 C. P. C. for arrest and detention of the judgment-debtor towards the payment of the amount decreed in the suit. Obviously, the petitioner contended that the judgment-debtor in spite of having means was avoiding to satisfy the decree and in view of this the execution petition was filed. Counter was filed opposing the petition stating that the judgment-debtor has no regular employment and has been eking cat his livelihood by working as cooli and has no means to satisfy the decree. ( 3 ) ON the basis of evidence recorded by him, the learned Junior Civil Judge found that the judgment-debtor had sufficient means to satisfy the decree inasmuch as he had Ac. 4. 52 cents of land towards his share from which he could satisfy the decree. The learned Counsel for the petitioner submits that this finding is erroneous. It is pointed out that the impugned order itself discloses that the view taken by the learned Judge is based on a finding that the mother of the judgment-debtor is having Ac. 26. 27 cts. of land in S. No. 207 of Chettur village. ( 4 ) THERE is no mention in the impugned order as to how the mother of the judgment-debtor happened to acquire that piece of land. There is nothing to show as to how the petitioner-judgment-debtor is entitled to a share in the land held by his mother. Any land held by a woman is presumed to be her Stridhana property and there is no presumption that the sons have any share in the property of a woman. In view of this, it is difficult to concede as to how the learned Judge came to the conclusion that the judgment-debtor has a share amounting to Ac. 4. 52 cts. in the said land. The finding that the judgment-debtor has means to satisfy the decree, therefore, cannot stand. ( 5 ) HOWEVER, the learned Counsel for the respondent contends that the revision petition is not maintainable. 4. 52 cts. in the said land. The finding that the judgment-debtor has means to satisfy the decree, therefore, cannot stand. ( 5 ) HOWEVER, the learned Counsel for the respondent contends that the revision petition is not maintainable. The basis for this contention appears to be that in the operative portion of the impugned order, the learned Junior Civil Judge, while allowing the petition merely directed the judgment-debtor to pay the amount. I have no hesitation in rejecting this contention. The Execution Petition itself has been filed for the specific relief of arrest and detention of the judgment-debtor as the mode for execution of the decree. The learned Judge has allowed the petition. The mere fact that a specific direction to arrest and detain the judgment-debtor is not found in the order, does not in any way indicate that the relief sought by the petitioner in the execution petition has been rejected. In fact, the petition has expressly been allowed. Mere omission to repeat the prayer sought in the petition in the order passed by the learned judge does not mean that the relief has been rejected. In fact, as contended by the learned Counsel for the petitioner, a direction to pay is only the first step towards the arrest and detention of the judgment-debtor. When a finding has been given that the judgment-debtor has sufficient means to satisfy the decree and when the petition for execution of the decree by arrest and detention of the judgment-debtor has been allowed, the only inference is the learned Judge allowed the relief of arrest and detention of the judgment-debtor. ( 6 ) AS seen above, the finding of the learned Junior Civil Judge that the judgment-debtor has sufficient means on the ground that he had a share in the land held by his mother, cannot be sustained. ( 7 ) THE Civil Revision Petition is therefore allowed and the impugned order is set aside.