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2006 DIGILAW 727 (AP)

G. Sudhakara Reddy v. Jahnavi Chit Fund Pvt. Ltd.

2006-06-28

G.V.SEETHAPATHY

body2006
ORDER This Civil Revision Petition is filed against the order dated 26-7-2005 in E.P. NO.27 of 2004 in O.S. No. 276 of 1997 on the file of II Additional Senior Civil Judge at Vijayawada, wherein the warrant of arrest was ordered against the revision petitioner-2nd judgment debtor. " 2. Heard the counsel for the revision petitioner. None appeared for the 1st respondent/decree-holder though served with the notice. 3. The first respondent/decree-holder filed the suit O.S. No.276 of 1997 and the same was decreed for an amount of Rs. 62,069/- and interest and costs. The 1st respondent filed E.P. No. 27 of 2004 for realization of total amount of Rs. 1 ,22,647/- under the decree. The revision petitioner/2nd judgment-debtor is one of the guarantors for the suit transaction for 2nd respondent herein, who was the principal borrower. The execution petition was filed seeking arrest of the principal debtor and guarantors under Order 21 Rule 37 CPC in a bid to realize the decretal amount. The revision petitioner/2nd judgment-debtor filed a counter before the execution court pleading that he has retired from seine and has been suffering with several ailments and he has no means to pay the decretal amount. He further pleaded that the principal borrower/1st judgment-debtor has got properties and the other judgment debtors who are also guarantors are in service, but however, the decree-holder is proceeding against the revision petitioner alone, which is borne out by the evidence of P.W.1, B:-Chandrasekhar, who deposed that he is proceeding against one of the guarantors i.e., 2nd judgment-debtor. He also admitted that the 2nd judgment-debtor retired from service and other judgment-debtors are in service. It is suggested to P.W.1 in the cross-examination that the 2nd judgment-debtor has no means to pay the decretal amount. P.W.1, however, denied the suggestion. The Revision petitioner/ 2nd judgment-debtor also deposed as R.W.1 that he retired from service and due to wealth, he is unable to move from place to place and the other judgment-debtors are in service and 1st judgment-debtor has also got moveable and immoveable properties, but intentionally the decree-holder is harassing 2nd judgment-debtor by filing execution petition against him alone. He further deposed categorically that he has no means to pay the decretal amount. In the cross-examination, R.W.1 reiterated that he has no immoveable property. He further deposed categorically that he has no means to pay the decretal amount. In the cross-examination, R.W.1 reiterated that he has no immoveable property. He also denied the suggestion made on behalf of the decree-holder that he has got sufficient means to pay the decretal amount. The execution court ordered the arrest of the revision petitioner/2nd judgment-debtor by observing that 2nd judgment-debtor is owning a house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village and he has got sufficient means to pay the amount as can be seen from the evidence of P.W. 1, but the 2nd judgment-debtor has not denied the same in the cross-examination, which amounts to an admission on his part. 4. Learned counsel for the revision petitioner contended that the decree-holder has chosen to proceed against the 2nd judgment debtor alone, though he is a retired person, having no means to pay with a view to harass, leaving out the other judgment-debtors including the principal borrower, who has got sufficient means to pay the decretal amount. The said contention as rightly observed by the learned Senior Civil Judge is untenable, as the decree-holder has got every liberty to proceed against any of the judgment-debtors, who are equally liable for discharge of the decree debt~ and that he is evading to pay the same and therefore, ordering his arrest is unwarranted. 5. Order 21 CPC contemplates the execution of the decree by ordering arrest of the judgment-debtor. Section 51 CPC lays down that the Court may on the application of the decree-holder, order execution of the decree - inter alia by ordering arrest and detention in prison, where the arrest and detention is permissible. The proviso to Section 51 CPC states that where the decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing is satisfied; among other things that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects to pay the same. 6. In the present case P.W.1, who is representing decree-holder, has stated in his evidence that the revision petitioner is owning a house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village. 6. In the present case P.W.1, who is representing decree-holder, has stated in his evidence that the revision petitioner is owning a house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village. In the execution petition, the decree-holder has not stated that the 2nd judgment-debtor is owning any such house. The said house was never sought to be attached either in the suit proceedings or in the execution proceedings by the plaintiff. It was suggested to P.W.1 in the cross-examination that the 2nd judgment debtor has no means to pay the decretal amount. Besides the said suggestion, 2nd judgment-debtor has also testified in his evidence as R. W.1 that he does not have any property and he is a retired employee. Then the burden squarely lies on the decree-holder to establish that the judgment-debtor has got sufficient means to pay and that with a view to defeat the decree, he has been avoiding payment. Except a bald averment in his evidence as P.W.1 that2ndjudgment-debtoris owning a house, the decree-holder has not produced any other evidence either oral or documentary, to show that the judgment debtor is owning any such house and that he is deriving any income from that house, which would be sufficient to discharge the decree debt. In the absence of any such evidence, the vague suggestion of P.W. 1 made for the first time in evidence about owning a house by the revision petitioner remains totally unsubstantiated. It is not open for the decree holder to contend that the said averment in the evidence of P.W. 1 amounts to an admission on the part of the 2nd judgment-debtor, in the absence of specific denial. In fact, as already stated, 2nd judgment-debtor as R.W. 1 has sufficiently denied both in his counter and in his evidence of having any means to pay the decree debt. His plea from the beginning is that he is a retired person, having no property and no income and is afflicted with ailments and so, he has no means to pay the decree debt. When the decree-holder failed to show that 2nd judgment-debtor is owning any such house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village by producing any oral or documentary evidence in support of his plea that specific denial of the same by the revision petitioner, amounts to an admission on his part, cannot be countenanced. When the decree-holder failed to show that 2nd judgment-debtor is owning any such house bearing Door No.10-45, Ramakrishnapuram of Guntupalli village by producing any oral or documentary evidence in support of his plea that specific denial of the same by the revision petitioner, amounts to an admission on his part, cannot be countenanced. In fact that revision petitioner has sufficiently denied of having any properties or means to pay the decree debt. The impugned order of the execution court suffers from the legal infirmity, inasmuch as it seeks to presume the existence of means on the part of the revision petitioner and throws the burden on him to disprove the same, which is contra to the intendment of Section 51 CPC which lays down that it is for the decree-holder to establish to the satisfaction of the Court that the revision petitioner has means to pay the decree amount and is refusing or neglecting to pay the same. 7. In these circumstances, it is held that the impugned order dated 26-7-2005 in E.P. No.27 of 2004 in O.S. No.276 of 1997 on the file of II Additional Senior Civil Judge, Vijayawada is unsustainable and is liable to be set aside. " 8. In the result, the Civil Revision Petition is allowed setting aside the impugned order dated 26-7-2005 in E.P. No.27 of 2004 in O.S. NO.276 of 1997 on the file of II Additional Senior Civil Judge, Vijayawada. No order as to costs.