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2003 DIGILAW 505 (AP)

Kowuri Mallikarjuna Reddi v. Kota Sankara Rao

2003-03-28

B.SESHASAYANA REDDY

body2003
( 1 ) THIS Civil Revision Petition is directed against the order dated 16-4-2002 passed in e. P. No. 30 of 2001 in O. S. No. 71 of 2000 on the file of Senior Civil Judge, Bobbili, whereby the learned Senior civil Judge dismissed the execution application filed by the petitioner herein seeking detention of the respondent-judgment debtor in civil prison for realization of the decretal amount. ( 2 ) THE petitioner herein is the decree holder. He filed E. P. No. 30 of 2001 under order 21 Rule 37 and Section 55 CPC seeking arrest and detention of the respondent-Judgment debtor in civil prison for realization of decretal amount. ( 3 ) THE respondent-judgment debtor filed counter stating that he has no means to pay the decretal debt. On behalf of the petitioner-decree holder, he got himself examined as P. W. 1 and examined Posala rajasekhara Rao as P. W. 2. On behalf of the respondent-judgment debtor, he got himself examined as R. W. 1. P. W. 1 testifies that the respondent-judgment debtor is a contractor earning Rs. 20,000/- per month and so he has sufficient means to pay the decretal debt. P. W. 2 is said to be a material supplier. It is his evidence that he supplied material to the respondent-judgment debtor for his construction activities. Both the witnesses admitted that they have no proof to show that the respondent-judgment debtor has real estate business and that he was earning rs. 20,000/- per month. The Court below considered the evidence of P. Ws. 1 and 2 and observed as follows: "thus this evidence of P. Ws. 1 and 2 during their cross-examination is unequivocally that they have no acceptable evidence to establish that the judgment debtor is doing any business, much less real estate business and is getting any monthly income much less at Rs. 15,000/- to rs. 20,000/ -. The decree holder also failed to prove that the judgment debtor owning a house in Sainagar colony of Bobbili. He has even failed to prove that the father of the judgment debtor is the owner of that house because he did not care to place any iota of documentary evidence to prove his contention about the ownership of that building either to the judgment debtor or to his father. He has even failed to prove that the father of the judgment debtor is the owner of that house because he did not care to place any iota of documentary evidence to prove his contention about the ownership of that building either to the judgment debtor or to his father. Even though P. W. 2 deposed that if time is given to him he will produce the bills which are with him for the stones and the flooring material supplied by him to the judgment debtor, for the reasons best known to him he did not choose to produce those bills and as such this Court could not have any alternative than to draw the adverse inference to the effect that since there are no such bills in existence P. W. 2 could not produce any such bills. " ( 4 ) THE observation made by the Court below is on thorough appreciation of the evidence brought on record. When P. Ws. 1 and 2 failed to place any proof to show that the respondent-judgment debtor has real estate business, the petitioner-decree holder is not entitled to seek arrest of the respondent-judgment debtor. 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 or alternatively, current means to pay the decree or a substantial part of it. The provisions of Section 51 of CPC emphasizes the need to establish nof mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Since the petitioner-decree holder failed to prove that the respondent-judgment debtor has real estate business and that he has sufficient means to pay the decretal debt, the E. P. is liable to be dismissed. The Court below considered the evidence brought on record in right perspective and dismissed the E. P. I do not see any reason to interfere with the impugned order. ( 5 ) IN the result, this Civil Revision petition Fail and dismiss confirming the order dated 16-4-2002 passed in E. P. No. 30 of 2001 in O. S. No. 71 of 2000 on the file of senior Civil Judge, Bobbili. No order as to costs.