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2001 DIGILAW 946 (AP)

Guna Yerrannaidu v. Guna Venkanna

2001-08-28

P.S.NARAYANA

body2001
P. S. NARAYANA, J. ( 1 ) THE revision petitioner is the judgment debtor in E. P. No. 15 of 1997 in O. S. No. 54 of 1990 on the file of the learned Junior Civil Judge, Pathapatnam, Srikakulam District. The execution petition was filed by the respondent-decree holder for realisation of the decretal amount by ordering arrest of the judgment debtor. The Court below after recording the evidence of the decree-holder, as P. W. 1 and also the judgment debtor as RW-1 and other two witnesses as RWs. 2 and 3, had arrived at the conclusion that the judgment debtor is having means to pay the decree debt and accordingly ordered issuance of an arrest warrant and the judgment debtor aggrieved by the same had filed the present civil revision petition. ( 2 ) SRI A. Rama Rao, learned counsel representing the revision petitioner-judgment debtor had contended that the decretal debt, itself, has been discharged and to establish the same RWs. 2 and 3 were examined. But, no doubt, the evidence of RW-2 had been eschewed since he could not be offered for cross-examination as the said witness became an unwilling horse subsequently. The learned counsel had also taken me through a portion of the order of the Court below and had contended that even the appreciation of the evidence by the Court below is totally erroneous. At any rate, alternatively, the learned counsel requested for granting instalments for discharging the decree debt. The learned counsel had placed reliance on a decision of the Orissa High Court in Nrusingha Charan Baisakh v. SBI, Dhenkanal, AIR 1988 Orissa 132. ( 3 ) SRI Raj Kumar representing Mr. Ch. Dnanjaya, learned counsel for the respondent/decree holder had submitted that the contention that the decretal debt was discharged by the judgment debtor is totally unsustainable and the very fact that the judgment debtor had made an application- E. A. No. 11 of 1999 requesting time and also praying for grant of instalments for payment of the decretal debt, clearly goes to show that the stand taken by the judgment debtor is totally unsustainable one. Further the learned counsel also had pointed out the relevant portion of the order where a clear finding has been recorded relating to the means of the judgment debtor. ( 4 ) HAVING heard both the learned counsel, I had gone through the order of the Court below. Further the learned counsel also had pointed out the relevant portion of the order where a clear finding has been recorded relating to the means of the judgment debtor. ( 4 ) HAVING heard both the learned counsel, I had gone through the order of the Court below. After appreciation of the evidence, the executing Court was pleased to record :"from the evidence of PW. 1 it is established that the judgment debtor has got not less than Ac. 50. 00 acres of land worth about Rs. 20,00,000. 00. During his cross-examination the respondent did not put any suggestion denying the allegation of PW-1 that rw-1 has got Ac. 50. 00 of land. RW-1 also in his evience did not deny the allegation of PW-1 and he did not depose that he got no landed property or he got less than landed property what was stated by PW-1. From this I am of the opinion that it can be presumed that the respondent has got Ac. 50. 00 of land worth about 20,00,000. 00 rupees. " ( 5 ) THE executing Court had recorded this clear finding relating to the means of the judgment debtor. 5-A. The learned counsel representing the revision petitioner had drawn my attention to the relevant portion of the order regarding his contention of settlement of the matter with the decree holder. The relevant portion of the order reads as follows :"this the judgment debtor was examined as RW-1 and in his evidence he has stated that after the decree, one Mamidi Chiranjeevulu who is the son-in-law of the decree holder and one Hanumanthu Ramamurthy and one Ragulu Gurayya called both the parties and they have fixed the decretal amount at Rs. 20,000. 00 towards final settlement and the other elders except Chiranjeevulu directed him to give Rs. 18,000. 00 but Chiranjeevulu directed him to give Rs. 20,000. 00 and accordingly the amount was settled at Rs. 20,000. 00 and decree holder agreed to the settlement and he gave amount to the elders and even though, he paid the amount, the decree holder did not withdraw this present petition and that as he paid Rs. 20,00. 00 as per the final settlement he need not pay anything. I have not taken into consideration of RW-2 as his evidence is eschewed. 20,00. 00 as per the final settlement he need not pay anything. I have not taken into consideration of RW-2 as his evidence is eschewed. RW-3 has stated that after the decree their elders compromised the matter between both the parties and that RW-1 offered to pay Rs. 15,000. 00 towards final settlement but the son-in-law of PW-1 agreed for the settlement made by their elders at Rs. 20,000. 00 and accordingly, RW-1 gave the amount of Rs. 20,000. 00 to RW-2. "here it is pertinent to note that the evidence of RW-2 was eschewed and hence that evidence is not available to be read in deciding the present dispute. Whatever may be the stand or contention raised by the judgment debtor, the fact of payment made out side the Court was not recorded by the Court in accordance with law. Therefore, such a payment cannot be given credit to. Hence, this stand of the judgment debtor need not be taken into consideration. ( 6 ) COMING to the crucial aspect whether the decree holder had proved the means of the judgment debtor and the neglect on the part of the judgment debtor to discharge the decretal debt, a finding had been recorded by the Court below relating to the means and I am not inclined to disturb this finding of fact while exercising revisional jurisdiction. ( 7 ) THE next aspect that has to be considered, is the neglect on the part of the judgment debtor in discharging the decretal debt. In this regard the conduct of the judgment debtor, itself, is self-explanatory. The very fact that he had taken the stand of settlement out side the Court and his miserable failure to establish the same clearly goes to show that the judgment debtor is intentionally evading and neglecting to discharge the decree debt, though he is having means to pay the same. ( 8 ) THE next question is as to whether instalments can be granted in the case of money decree by the executing Court. Strong reliance is placed by the learned counsel for the petitioner on Nrusingha Charan Baisakh case and it was contended that though no specific provision is there, such a relief can be granted by the executing Court, under S. 151 of the Code of Civil Procedure (for short the Code ). Strong reliance is placed by the learned counsel for the petitioner on Nrusingha Charan Baisakh case and it was contended that though no specific provision is there, such a relief can be granted by the executing Court, under S. 151 of the Code of Civil Procedure (for short the Code ). The facts of the said case appears to be standing on a different footing. It would be relevant for this purpose to look into Order 20, Rule 11 of the Code, which reads as follows : (1) Where and in so far as decree is for payment of money, the Court may for any sufficient reason (incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last date of hearing, before judgment, an order that) payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. (2) After the passing of any such decree the Court may, on the application of the judgment-debtor and with the consent of the decree holder, or that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of the interest, the attachment of the property of the judgment debtor, or the taking of security from him, or otherwise, as it thinks fit. ( 9 ) AT the time of passing of decree, no doubt, a direction for payment of the decretal amount in instalments can be incorporated. But, we are at the stage of execution. S. 151 of the Code deals with inherent powers. When a specific provision is there, specifying the power to grant instalments and to incorporate the same in the decree, itself, while making the judgment, can the Court extend such a benefit to the judgment debtor, even at the stage of execution. I am afraid that it may amount to overriding the specific power under Order 20, Rule 11 of the Code. It is also pertinent to note that Order 21 of the Code deals with execution of the decrees and orders. I am afraid that it may amount to overriding the specific power under Order 20, Rule 11 of the Code. It is also pertinent to note that Order 21 of the Code deals with execution of the decrees and orders. In the absence of specific provision empowering the executing Court to make an order of instalments even at the stage of execution, it should be necessarily taken that the intention of the legislature is not to confer such powers. Obviously, the intention of the legislature appears to be that at the stage of execution such a power should not be conferred and it may be with an intention to have the speedy recovery of the decretal debts by invoking the different modes of execution contemplated in Order 21 of the Code. Having regard to the different provisions of both orders 20 and 21 of the Code, I am of the considered opinion that the executing Court has no power to grant instalments since it will amount to converting the decree, which is already made by the Court, into an instalment decree at the stage of execution which is not permissible in law. ( 10 ) FOR the foregoing reasons, I am of the opinion that the civil revision petition is devoid of merits and the same is liable to be dismissed. But, however, in the impugned order, the period of detention had not been specified and for this purpose I am not inclined to remand the matter back and I intend to clarify that the period of detention is specified as three months. In view of the above modification, the impugned order does not suffer from any legality. ( 11 ) THE civil revision petition is accordingly dismissed. No costs. Order accordingly.