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2020 DIGILAW 829 (AP)

Nama Ramamurthy v. Avvari Satyanarayana

2020-12-17

M.SATYANARAYANA MURTHY

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ORDER : M. Satyanarayana Murthy, J. 1. This petition, under Section 115 of the Civil Procedure Code (for short "CPC"), is filed questioning the order dated 07.12.2012 in E.P. No. 128 of 2011 in O.S. No. 37 of 2002 passed by the Junior Civil Judge, Dharmavaram, Anantapur District, whereby the execution petition filed by the petitioner/D.Hr under Order XXI Rules 37 and 38 CPC for realization of the decree debt was dismissed. 2. The petitioner/D.Hr obtained a decree for recovery of amount and filed execution petition under Order XXI Rules 37 and 38 CPC for realisation of the decree debt by arrest of the respondent/J.Dr and commit him to civil prison. It is contended that the respondent/J.Dr is carrying on silk sarees business and earning Rs. 2,00,000/- to Rs. 3,00,000/- per month besides the business he owned a house worth Rs. 10,00,000/-. Despite possessing sufficient means the respondent/J.Dr is deliberately evading to pay the decree debt. Hence, the petitioner/D.Hr requested the Court to commit the respondent/J.Dr to civil prison for realization of the decree debt. 3. The respondent/J.Dr filed counter denying means pleaded by the petitioner/D.Hr, while contending that he has no means to pay the decree debt and that he did not possess any property to pay the decree debt, hence, the question of deliberate avoidance of decree debt does not arise and requested the Court to dismiss the petition. 4. During enquiry, on behalf of the petitioner/D.Hr, the D.Hr himself was examined as P.W.1 and no documents were marked whereas the respondent/J.Dr was examined as R.W.1 and no documents were marked. 5. Upon hearing both the counsel and considering oral evidence on record, the trial Court concluded in Para 9 of the order that the petitioner/D.Hr failed to establish that the respondent/J.Dr is having sufficient means to pay the decree debt and deliberately avoiding to pay the decree debt by applying the principle laid down by the Apex Court reported in, AIR 1980 SCC 470 and dismissed the execution petition. 6. Aggrieved by the dismissal order, present revision petition under Section 115 CPC is filed questioning the order on the ground that when the petitioner filed execution petition showing the property owned and possessed by the respondent/J.Dr and his capacity to pay the decree debt, it is for the respondent/J.Dr to discharge the initial burden of proof. 6. Aggrieved by the dismissal order, present revision petition under Section 115 CPC is filed questioning the order on the ground that when the petitioner filed execution petition showing the property owned and possessed by the respondent/J.Dr and his capacity to pay the decree debt, it is for the respondent/J.Dr to discharge the initial burden of proof. But, nothing could be elicited in the evidence of respondent/J.Dr (R.W.1) that he had no capacity to discharge the decree debt. In the absence of any proof to adjudge the respondent/J.Dr as insolvent, the dismissal of the execution petition itself is illegal and requested to set aside the same. 7. During hearing, Sri K. Sita Ram, learned counsel for the petitioner/D.Hr reiterated the contentions urged in the petition while drawing attention to the evidence on record to the notice of this Court and requested to pass appropriate order in accordance with law. Whereas, learned counsel for respondent/J.Dr Sri P. Ravi Krishna supported the order passed by the trial Court in all respects. 8. Considering rival contentions, perusing the material on record, the sole point that arose for consideration is that:- Whether the petitioner/D.Hr is able to establish that the respondent/J.Dr possessed sufficient means to discharge the decree debt and that he is deliberately avoiding to pay the decree debt in O.S. No. 37 of 2002 on the file of Junior Civil Judge, Dharmavaram, Anantapur District, if so, whether the respondent/J.Dr be committed to the civil prison to realize the decree debt? 9. Point: Admittedly, the petitioner/D.Hr obtained a decree for recovery of amount and filed execution petition under Order XXI Rules 37 and 38 CPC with a prayer to commit the respondent/J.Dr to the civil prison for realization of the decree debt. Along with the execution petition the petitioner submitted an affidavit, but it is not placed on record. However, to prove the means of the respondent/J.Dr to pay the decree debt, the petitioner/D.Hr was examined as P.W.1 who filed his affidavit under Order XVIII Rule 4 CPC and the trial Court has taken the same as examination-in-chief. 10. In the examination-in-chief the petitioner/D.Hr, he asserted that the respondent/J.Dr possessed movable and immovable properties and carrying on silk sarees business and earning Rs. 2,00,000/- to Rs. 3,00,000/- per month, he owned and possessed a building worth Rs. 10,00,000/-, but he is evading to pay the decree debt. 10. In the examination-in-chief the petitioner/D.Hr, he asserted that the respondent/J.Dr possessed movable and immovable properties and carrying on silk sarees business and earning Rs. 2,00,000/- to Rs. 3,00,000/- per month, he owned and possessed a building worth Rs. 10,00,000/-, but he is evading to pay the decree debt. However, the petitioner/D.Hr did not produce any documentary evidence either in proof of the business being carried on by the respondent/J.Dr or possessing a house worth Rs. 10,00,000/-. In the cross examination, P.W.1 (D.Hr.) admitted that he did not produce any document in support of the means possessed by the respondent/J.Dr and did not furnish even the door number of the house and at least the ward number where the house is situated. The respondent/J.Dr also filed his affidavit under Order VIII Rule 4 CPC in lieu of his examination-in-chief where he asserted that he has no means to pay the decree debt and the question of deliberate avoidance does not arise. 11. In the cross examination of P.W.1 it is elicited that the respondent/J.Dr filed insolvency petition before the Senior Civil Judge, Penukonda, Anantapur District and it was dismissed on merits. But, a copy of the same was not brought on record by the petitioner/D.Hr to substantiate the contention that the insolvency petition was dismissed on the ground that the respondent/J.Dr is having capacity to discharge the decree debt and that the value of the property possessed by him is exceeding the value of the debts. In the absence of the copy of the order in insolvency petition, it is difficult for this Court to conclude at this stage that the respondent/J.Dr owned and possessed any property and having capacity to discharge the decree debt, deliberately evading to pay the decree debt. As per the judgment reported in Jolly George Verghese and another Vs. The Bank of Cochin : AIR 1980 SCC 470 . 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 reversant disposition in the past or alternatively enroot means to pay the decree or substantial part of it. The provision emphasizing the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of obligation under the decree. The provision emphasizing the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of obligation under the decree. Hence, it is for the petitioner/D.Hr to establish that not only the respondent/J.Dr is having capacity to pay the decree debt but also to prove that he intentionally evading to pay the decree debt. The executing Court recorded a specific finding that the petitioner/D.Hr failed to prove these two mandatory requirements to order arrest of the respondent/J.Dr by exercising power conferred under Order XXI Rules 37 and 38 CPC and even after reappraisal of the entire evidence by exercising power under Section 115 CPC this Court find no material to substantiate the contention that the respondent/J.Dr has capacity to pay the decree debt and evading to discharge the decree debt willfully or deliberately. 12. The power under Section 115 CPC is limited. The High Court can exercise only three circumstances as enumerated under Section 115 of CPC which are extracted as hereunder:- (a) to have exercised a jurisdiction not vested in it by law; or (b) to have failed to exercise a jurisdiction so vested; or (c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit; 13. But, in the present case no material is found on record to bring the case within any of the clauses under Section 115 CPC. Therefore, I find no ground to warrant interference of this Court in the impugned order passed by executing Court in execution petition. However, this Order will not preclude the petitioner/D.Hr to execute the decree in any other mode of execution. 14. In the result, the Civil Revision Petition is dismissed affirming the order dated 07.12.2012 in E.P. No. 128 of 2011 in O.S. No. 37 of 2002 passed by the Junior Civil Judge, Dharmavaram, Anantapur District giving liberty to the petitioner/D.Hr to realise the decree from the respondent/J.Dr in any other mode of execution. There shall be no order as to costs. The miscellaneous applications pending, if any, shall also stand closed.