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2022 DIGILAW 752 (AP)

Gouru Giridhara Rao v. Mangi Gangayya

2022-08-12

BANDARU SYAMSUNDER

body2022
JUDGMENT Bandaru Syamsunder, J. - This Civil Revision Petition is filed by the petitioner/Decree holder/plaintiff under section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned Principal Junior Civil Judge, Sompeta in EP No. 6 of 2013 in OS. No. 23 of 2010, wherein and whereby the learned trial Judge dismissed by the petition filed by the Decree holder seeking for arrest and detention of the respondent/Judgment debtor in civil prison in realization of his decretal amount. 2. The case of the revision petitioner in brief is that he obtained money decree against the respondent on 26.11.2012 for a sum of Rs. 29,500/- and after passing of the decree, he demanded the respondent to repay the decretal amount, but in vain. It is the contention of the petitioner before the trial Court that the respondent/Judgment debtor in spite of having movable and immovable properties and getting income, intentionally evading to pay the decretal amount due to that he is liable to be detained in civil prison. 3. The respondent filed counter before the trial Court, denying the allegations made in the affidavit of the petitioner. It is the contention of the respondent in his counter that he filed appeal suit 5 of 2013 on the file of Senior Civil Judge Court, Sompeta against the Judgment and decree, dated 26.11.2012 passed in OS. No. 23 of 2010 and the said appeal is pending. He submits that he has no means to pay the decretal amount and he is aged 65 years and suffering from ill-health and not liable for arrest and detention in civil prison. He prays to dismiss the petition. 4. On behalf of the petitioner, he himself examined PW. 1 and no documents were marked. On behalf of respondent, RW. 1, RW. 2 were examined and Exs. R1 to R5 were marked. 5. The learned trial Judge after hearing both sides, dismissed the petition on the ground that the Judgment debtor has no movable or immovable properties and he is suffering from Cancer as per Exs. R1 to R5, due to that he is not liable to be arrested and detained in civil prison. 6. R1 to R5 were marked. 5. The learned trial Judge after hearing both sides, dismissed the petition on the ground that the Judgment debtor has no movable or immovable properties and he is suffering from Cancer as per Exs. R1 to R5, due to that he is not liable to be arrested and detained in civil prison. 6. Aggrieved by the Orders of the trial Court, the present Civil Revision Petition is filed by the petitioner stating that orders passed by the trial Court dismissing the execution petition is erroneous, contrary to law and amounts to failure to exercise the power vested in the Court. He submits that the respondent/Judgment debtor has got capacity to pay the decretal amount, but he is intentionally evading to pay the same and trial Court did not give any finding with regard to means of respondent and erroneously dismissed the execution petition, which is liable to be set aside. The petitioner also stated that medical certificates produced by the respondent marked as Exs. R1 to R5 pertaining to the period of March, 2010, but the execution petition is filed by him in the year 2013 by that time the Judgment debtor is hale and healthy which trial Court failed to consider. He prays to set aside the orders passed by the trial Court and allow the revision petition. 7. On 28.01.2015 and also on 12.02.2020 this Court permitted the petitioner to take out personal notice to respondent and file proof of service, which the petitioner has not complied. The learned Advocate for the petitioner proceed to submit arguments in the revision petition. 8. I have heard learned Advocate for petitioner in the revision petition. 9. It is the contention of the learned Advocate for the revision petitioner that the trial Court failed to give any finding with regard to means of respondent and wrongly placed heavy reliance on Exs. R1 to R5 which are pertaining to the year 2010. He prays to set aside the orders of the trial Court and allow the revision petition. 10. Now the point for determination is:- 'Whether the Orders passed by the trial Court dismissing the Execution petition filed by the petitioner are sustainable either in law or on facts?' 11. POINT:- Before going to the merits of the case, it would be beneficial to quote Section 51 of CPC, which reads as under:- 'Section 51. 10. Now the point for determination is:- 'Whether the Orders passed by the trial Court dismissing the Execution petition filed by the petitioner are sustainable either in law or on facts?' 11. POINT:- Before going to the merits of the case, it would be beneficial to quote Section 51 of CPC, which reads as under:- 'Section 51. Powers of Court to enforce execution:- Subject to such conditions and limitations as may be prescribed, the court may, on the application of the decree-holder, order execution or the decree- (a) xx xx xx (b) xx xx xx (c) by arrest and detention in person; for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that section; (d) xx xx xx (e) xx xx xx Provided that, where the decree is for the 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- (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree- (i) is likely to abscond or leave the local limits of the jurisdiction of the court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) 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 refused or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account'. 12. As per proviso (b) of Section 51 CPC, the respondent shall not be ordered to be detained in the civil prison unless it is shown by the Decree holder that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount or some substantial part thereof and intentionally refused or neglected to pay the same. 13. 13. The petitioner/Decree holder has to establish that the respondent/Judgment debtor has means to pay the decretal amount or a substantial part thereof, but he refused or neglected to pay the same to the petitioner. The simple default to discharge the decretal amount is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. For which, the considerations of other pressing needs and straitened circumstances of respondent will also play prominently. Further, the Court should see whether the Judgment debtor is in a fit state of health to undergo sentence of detention in civil prison and there is deliberate negligence on the part of the Judgment debtor in discharging decretal amount, failing which no arrest can be ordered. 14. On perusal of orders passed by the trial Court, which shows that the Decree holder himself is examined as PW. 1 who deposed that the respondent is having movable and immovable properties in his native village, which details he has not stated. On the other hand, the respondent/Judgment debtor examined himself as RW. 1 and also examined one of the witness on his behalf as RW. 2 and got marked Exs. R1 to R5, which are discharge certificate and medical certificates to show that he is suffering from cancer, which also taken into consideration by the learned trial Judge. The petitioner/Decree holder has not filed any document to show that respondent/Judgment debtor is having movable and immovable properties, getting income and got present means to pay the decretal amount. It is also not the contention of the petitioner that respondent is not suffering from cancer and contention of respondent is also supported by Exs. R1 to R5 medical records. The petitioner failed to prove the present means of respondent/Judgment debtor and he also failed to prove that in spite of sufficient means, the respondent is intentionally neglected to pay the decretal amount. Therefore, simple default of payment of decretal amount is not sufficient to order for detention of the Judgment debtor in civil prison in realization of decretal amount. This Court did not find any irregularity or illegality in the Orders passed by the trial Court dismissing the execution petition filed by the petitioner. 15. In the result, the Civil Revision Petition is dismissed. This Court did not find any irregularity or illegality in the Orders passed by the trial Court dismissing the execution petition filed by the petitioner. 15. In the result, the Civil Revision Petition is dismissed. No costs. Consequently, miscellaneous petitions pending if any, shall stand closed.