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Andhra High Court · body

2006 DIGILAW 786 (AP)

G. Nana Gaud v. V. Sreenivas Rao

2006-07-07

C.Y.SOMAYAJULU

body2006
ORDER Respondent obtained a money decree against the revision petitioner and filed E.P. for recovery of the amount covered by the decree, by detaining the revision petitioner in prison or by attachment and sale of his property. 2. Revision petitioner filed a counter inter alia contending that since the respondent obtained ex parte decree without serving summons on him and since he is an agriculturist and a small farmer, the decree cannot be executed against him. 3. The executing Court, holding that the revision petitioner cannot simply allege that the decree was obtained behind his back and that he without producing any documentary evidence to show about his being a small farmer, oppose the execution, ordered arrest of the revision petitioner to be produced before the Court on or before 20-7 -2004. Questioning the said order, the revision petitioner preferred this revision. 4. The contention of the learned counsel for the revision petitioner is that since the E.P. is filed for either the arrest or attachment of the property of the revision petitioner, the executing Court without properly taking into consideration the provisions of Section 51 of the Code of Civil Procedure and the law laid down by this Court in various decisions, erroneously ordered arrest of the revision petitioner. It is his contention that unless there is evidence on record to show that the revision petitioner, having means, is evading payment, executing Court cannot order his arrest. He relied on Kalidindi Rama Raju v. Vijaya Bank1 where it is held that Courts should examine whether other modes of recovery are available to the decree holder or not, cannot order arrest of a judgment-debtor that too, without giving a finding if he is wilfully and intentionally neglecting to discharge the decree debts. He also relied on Kanneganti Anjaneyulu and others v. State Bank of India2 where it is held that the scheme of Section 51 CPC is to ensure that sufficient reasons exist for making an order of arrest and detention of a J.Dr. in civil prison in execution proceedings and that in every case of non-payment of decretal amount, a J. Dr is not liable to be arrested and detained in civil prison unless the case falls within one of the clauses of the proviso to Section 51 CPC. 5. There is no representation on behalf of the respondent though served. 6. in civil prison in execution proceedings and that in every case of non-payment of decretal amount, a J. Dr is not liable to be arrested and detained in civil prison unless the case falls within one of the clauses of the proviso to Section 51 CPC. 5. There is no representation on behalf of the respondent though served. 6. In my considered opinion, the decisions relied on by the learned counsel for the revision petitioner have no application to the facts of this case. In both the decisions relied on by the learned counsel for the revision petitioner, the court was considering the order relating to detention of the judgment-debtor in prison after arrest. The order under revision is not for detention of the revision petitioner in prison, but is only for his production before the Court on 20-07-2004 under arrest. Question of ordering detention of the revision petitioner in prison arises only if the other conditions laid down in Section 51 CPC are satisfied. That section has to be read with Rule 38 of Order 21 CPC. Rule 38 of Order 21 CPC requires that every warrant for the arrest of a judgment debtor shall direct the officer entrusted with its execution to bring him before the Court with all convenient speed, unless the judgment debtor paid the amount. Once the Judgment-debtor appears in obedience to a notice, or is brought to Court after being arrested, Rule 40 of Order 21 requires the Court to proceed to hear the decree holder and all such evidence as may be produced by him in support of the application for execution and then to give the judgment-debtor an opportunity to show cause why he should not be committed to prison. So merely because revision petitioner is ordered to be arrested and produced before the Court, it does not mean that he would automatically be detained in prison. After the judgment debtor is brought before the Court, the Court will enquire and find out if the necessary ingredients for detaining him in prison are established by decree holder or not. It is only after the decree holder establishes that there are grounds to detain the judgment debtor in prison should an order of detention be passed by the Court. 7. In this case, the order under revision only directs the revision petitioner being brought before the Court under arrest. It is only after the decree holder establishes that there are grounds to detain the judgment debtor in prison should an order of detention be passed by the Court. 7. In this case, the order under revision only directs the revision petitioner being brought before the Court under arrest. After the revision petitioner was brought under arrest the decree holder has to establish that there are grounds to detain the revision petitioner in prison by adducing evidence. Revision petitioner also can adduce evidence and can prove that he is not liable for detention in prison. 8. The contention that in view of the fact that there was no personal service of summons in the suit and inasmuch as the decree is an ex parte decree, the E.P. is not maintainable has no force or substance because even ex parte decree can be executed. If aggrieved by the ex parte decree revision petitioner should have filed a petition to set aside the ex parte decree, but he cannot oppose the execution on the ground that the decree sought to be executed is an ex parte decree. Since the revision petitioner did not adduce any evidence to show that he is a small farmer entitled to the benefits of Act 7 of 1977, executing Court holding that he is not a small farmer cannot be said to be erroneous. 9. Therefore, I find no merits in this revision and the revision is dismissed. No costs.