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2011 DIGILAW 189 (AP)

Dumpala Syamala Rao v. Killi Markendeswara Rao

2011-03-04

C.V.NAGARJUNA REDDY

body2011
Judgment : This Civil Revision Petition arises out of order dated 30-8-2010 in E.P.No.4/2005 in O.S.No.32/2002 on the file of learned Junior Civil Judge, Amadalavalasa. The petitioner is the plaintiff in the suit filed by him for realization of certain amount against the respondent herein. A practicing Advocate of Amadalavalasa Bar. The said suit was decreed which attained finality. The petitioner filed E.P.No.4/2005 for recovery of Rs.84,112/- as the respondent failed to pay the decretal amount. In the said E.P., the petitioner sought for arrest and detention of the respondent in civil prison as he has willfully avoided payment of the E.P. amount despite having means to pay. During inquiry, the petitioner examined himself as PW-1 and has also examined the Tahsildar, Sarubujjili Mandal, as PW-2 and marked Exs.P-1 to P-7. The respondent examined himself as RW-1. The petitioner, in his evidence as PW-1 has deposed that the respondent has sufficient means to pay as he owns and possesses an extent of Ac.6-33½ cents of land. PW-2 supported the said testimony of PW-1. Even the respondent has not disputed the fact that he owns the above mentioned extent. However, the court below has taken the view, which in my view is strange, that since the respondent is shown to be possessing Ac.6-33½ cents of land, there is no reason why the petitioner shall not proceed against the said property in stead of seeking the arrest of the respondent. In my opinion, this approach of the court below is wholly untenable. Under Section 51 C.P.C., where the decree is for the payment of money, execution by detention in prison shall not be ordered unless 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 or has refused or neglected to pay the same. From the admitted facts of the case, the respondent, despite having sufficient means to pay, has been evading payment. Therefore, the petitioner is entitled to seek arrest and detention of the respondent. The fact of the respondent owning property cannot be used to the disadvantage of the petitioner as seeking arrest and detention of the Judgment-debtor is one of the options available to the Decree-holder and he cannot be forced to take recourse to this provision only as a last resort after exhausting all other modes of execution. The fact of the respondent owning property cannot be used to the disadvantage of the petitioner as seeking arrest and detention of the Judgment-debtor is one of the options available to the Decree-holder and he cannot be forced to take recourse to this provision only as a last resort after exhausting all other modes of execution. No such law has been enunciated either by the Apex Court or this Court. Therefore, the whole approach of the court below cannot be sustained. Having regard to the admitted fact that the respondent is possessed of sufficient means to pay and has neglected to pay, the E.P. filed by the petitioner is allowed. The respondent shall be arrested and detained in civil prison after following the procedure under the Code of Civil Procedure, 1908. The respondent being a practicing Advocate, is not expected to indulge in evasion of the decretal liability despite having sufficient means to pay. The Registry is directed to mark a copy of this order to the Bar Council of A.P. which shall examine the conduct of the respondent and consider initiation of appropriate action under the provisions of the Advocates Act, 1961. With the above directions, the Civil Revision Petition is allowed.