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2008 DIGILAW 751 (AP)

Konda Subbaiah v. Yedoti Kamalakshaiah

2008-09-09

L.NARASIMHA REDDY

body2008
Judgment :- (Petition under Section 115 of CPC., to revise the order dated 9-1-2008 and made in EP.No.50/07 in OS.No.59 of 2005 on the file of the Court of the Senior Civil Judge, Rajampet.) The petitioner filed O.S.No.59 of 2005 in the Court of Senior Civil Judge, Rajampet, against the respondent, for recovery of certain amount. The suit was decreed on 24-07-2006. After the decree became final, the petitioner filed E.P.No.50 of 2007, under Order 21, Rule 37 C.P.C., alleging that, in spite of possessing adequate means, the respondent failed to pay the decretal amount. Notice was issued to the respondent, and he filed a counter-affidavit. He admitted that, he possessed lands, but pleaded that they are not yielding any income. He has also taken the plea that he is a small farmer. The Trial Court dismissed the E.P., through order dated 09-01-2008, on the ground that the petitioner failed to discharge his burden, to prove that the respondent had adequate means. Sri J. Sreenivasa Rao, learned counsel for the petitioner, submits that the very approach of the Executing Court, requiring the petitioner to prove beyond any reasonable doubt, that the respondent has adequate means, to discharge the decree; is contrary to law. He contends that, in matters of this nature, the duty of the decree-holder ends, where he established prima facie, that the judgment-debtor had valuable property. It is also his case that though the respondent has made a vague and uncertain statement that he is a small farmer, he did not utter a word in the deposition, and there was no basis for the Executing Court to dismiss the E.P. Sri Balaji Medamalli, learned counsel for the respondent, on the other hand, submits that when his client has taken the plea that he does not possess adequate means to discharge the decree, it was for the petitioner to prove the otherwise. He contends that when the personal liberty of the respondent is involved, meticulous care was required to be taken, and the Executing Court decided the matter in accordance with law. The petitioner filed the E.P., to recover the decretal amount. The Executing Court issued notice to the respondent, and after he appeared, it undertook the inequity. The petitioner filed an affidavit in lieu of chief-examination, and pleaded that the respondent is the owner of agriculture land to an extent of Ac.1.12 cents in Chiyyavaram. The petitioner filed the E.P., to recover the decretal amount. The Executing Court issued notice to the respondent, and after he appeared, it undertook the inequity. The petitioner filed an affidavit in lieu of chief-examination, and pleaded that the respondent is the owner of agriculture land to an extent of Ac.1.12 cents in Chiyyavaram. He further contended that the respondent is doing business and he possessed of adequate means to discharge the decree. Ex.A-4 is the encumbrance certificate, disclosing that the respondent is the owner of an extent of Ac.1.12 cents of land. As RW1, the respondent filed an affidavit, admitting that he owns the land, but pleaded that, it is not yielding any income. Though in the counter, in the E.P., he took the plea that he is a small farmer, he did not utter a word in the chief-examination. He admitted that the lands in the neighborhood of his land, are being cultivated regularly. He did not contradict the plea of the petitioner, that he is doing business. The Executing Court took the view that the petitioner has to come forward with conclusive proof, as regards the means of the respondent herein, to honour the decree. At more places than one, the Executing Court emphasized, that the petitioner must come forward with conclusive proof. Another aspect is that, even as regards the status of the respondent, as a landless poor. The Executing Court has placed the entire burden upon the petitioner. The precedent cited before it, was just brushed aside, by observing that, it does not apply. The approach adopted by the Executing Court is totally untenable in law. Once a decree is passed in favour of the plaintiff in a suit, the corresponding obligation is placed upon the defendant, to discharge the decree. When there is no response from the defendant, for discharging the decree, the plaintiff had an option to choose the method of execution. Arrest of the judgment-debtor is one such options. It can be resorted to, only when it is alleged by the decree-holder, that the judgment-debtor failed to comply with the decree, though the latter possessed of adequate means. Law does not require him to conclusively prove this. As a matter of fact, it is just impossible for anyone to prove the properties and resources possessed by another. It can be resorted to, only when it is alleged by the decree-holder, that the judgment-debtor failed to comply with the decree, though the latter possessed of adequate means. Law does not require him to conclusively prove this. As a matter of fact, it is just impossible for anyone to prove the properties and resources possessed by another. The duty of a decree-holder in matters of this nature ends, where he places some material before the Executing Court, which indicates that the judgment-debtor is possessed of the property and means. Thereupon, the burden shifts to the judgment-debtor, to establish, as to how he is handicapped from discharging the decree. Coming to the plea of small farmer, raised by the respondent, it needs to be noted that though such plea can be raised even at the stage of execution, the burden to prove it, squarely rests upon the person, who raises the plea. It has to be proved through oral and documentary evidence. A judgment-debtor cannot be extended the luxury of taking the plea and sitting in cool. The Executing Court erred on counts, viz., requiring the petitioner to prove the means, possessed by the respondent, on the one hand, and relieving the respondent totally, from proving the pleas raised by him. It is on account of such an approach, that the decrees, which are obtained after prolonged litigation and considerable expenditure, are reduced to non-entities. This would naturally tell upon the efficacy of the adjudication, through Courts. Unless the courts also feel the responsibility, to ensure that the decrees passed by it are given effect to, the credibility of the system would naturally be at stake. The facilities created by Law, in favour of judgment-debtors, can certainly be extended to them, but not just for the asking of it. For the foregoing reasons, the C.R.P. is allowed, and the order under revision is set aside. The Executing Court is directed to hear and dispose of the E.P., afresh, following the correct principles of law. There shall be no order as to costs.