Research › Search › Judgment

Andhra High Court · body

2022 DIGILAW 881 (AP)

Robert C. Dsilva v. Tikkana China Demudu

2022-09-14

BANDARU SYAMSUNDER

body2022
ORDER: 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 Senior Civil Judge, Vizianagaram, in E.P.No.76 of 2013 in O.S.No.234 of 2011, wherein and whereby the learned Judge dismissed the petition filed by 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/Decree Holder in brief is that he filed suit against the respondent for recovery money due under Hami Patram, dated 06.08.2008 wherein Court passed a decree in his favour directing the respondent/Judgment Debtor to pay a sum of Rs.04,04,942/-with subsequent interest at 12% per annum on Rs.03,00,000/-from the date of filing of the suit till the date of decree and 6% per annum from the date of decree till the date of realization. He submits that after passing of the decree, he demanded the respondent/Judgment Debtor to pay decretal amount, which he refused though having sufficient means to discharge his debt. He prays to order for arrest and detention of respondent/Judgment Debtor in civil prison. 3. The respondent/Judgment Debtor filed counter before the executing Court, denying the averments in the affidavit of the Decree Holder. It is the contention of the respondent/Judgment Debtor that he is an agriculturist as there are no rains, the crops raised by him totally damaged due to that he could not get any yield from the crops thereby he sustained huge loss. It is also the contention of the respondent/Judgment Debtor that due to bad weather conditions, there is no yield from the crops and he is not having any income and means to pay the decretal amount. He prays to dismiss the petition. 4. On behalf of the petitioner, he himself examined as PW.1. Exs.A.1 to A.6 were marked. On behalf of the respondent, no oral and documentary evidence adduced before executing Court. 5. The learned Judge after hearing both sides, dismissed the petition filed by the petitioner/Decree Holder on the ground that the petitioner/Decree Holder ought to have filed Execution Petition against the respondent/Judgment Debtor not for arrest and detention in civil prison but for attachment and sale of either or both immovable and movable of the respondent/Judgment Debtor. 6. 5. The learned Judge after hearing both sides, dismissed the petition filed by the petitioner/Decree Holder on the ground that the petitioner/Decree Holder ought to have filed Execution Petition against the respondent/Judgment Debtor not for arrest and detention in civil prison but for attachment and sale of either or both immovable and movable of the respondent/Judgment Debtor. 6. Aggrieved by the Orders passed by the executing Court, the present Civil Revision Petition is filed by the petitioner stating that Orders passed by the executing Court dismissing E.P.No.76 of 2013 is contrary to law and vitiate by material irregularities resulting failure of justice. He submits that Court below failed to appreciate the evidence available on record in proper perspective and erroneously dismissed the Execution Petition though Judgment Debtor not adduced any evidence rebutting the evidence adduced by him. He further submits that Court below failed to notice that Judgment Debtor is capable of paying decretal amount, who also made part payments during the pendency of execution proceedings and paid an amount of Rs.60,000/-which shows that Judgment Debtor is capable of paying the decretal amount. He prays to allow the revision petition and set aside the dismissal Orders passed by executing Court. 7. I have heard both sides. 8. It is the contention of the learned counsel for the revision petitioner that though the petitioner adduced oral and documentary evidence proving the means of respondent, for which, there is no rebuttal evidence on the part of the respondent, the Court below erroneously dismissed Execution Petition. He submits that the petitioner has got option to proceed against person and also against property of Judgment Debtor but Court cannot direct the Decree Holder to file Execution Petition in particular manner seeking particular relief. 9. It is also the contention of the learned counsel for the revision petitioner that Hon’ble Apex Court in Rahul S.Shah Versus Jinendra Kumar Gandhi and others (2021) 6 Supreme Court Cases 418 gave directions to execution Courts to avoid delay in execution of the decrees in money decrees and dispose of execution petitions within six months from the date filing. 10. 10. He further argued that as per ratio laid down in Gudiwada Munemma Versus Jawardhal 2007(2) ALT 8 (S.B.) wherein Hon’ble High Court held that dismissal of Execution Petition by executing Court on the availability of alternative mode of attachment and sale of his properties is not legal if Decree Holder is able to satisfy the Court on the alleged ground. He prays to allow revision petition. 11. The learned counsel for the respondent/Judgment Debtor mainly contended that though Judgment Debtor not adduced any oral or documentary evidence when the petitioner/Decree Holder seeking arrest and detention of Judgment Debtor in civil prison, the burden is on Decree Holder to prove the means of Judgment Debtor, which failed to prove by the revision petitioner. He submits that though revision petitioner/Decree Holder got remedy to file Execution Petition for attachment and sale of immovable properties of Judgment Debtor if any, the Decree Holder choosen to file Execution Petition for arrest and detention of Judgment Debtor, which involves personal liberty of the person, which cannot be curtail when Decree Holder failed to prove the means of Judgment Debtor. 12. He argued that in Jolly George Varghese and another Versus The Bank of Cochin, AIR 1980 Supreme Court 470 Hon’ble Apex Court held that the simple default to discharge the debt, is not enough but there must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or alternatively, current means to pay the decretal amount or a substantial part of it. 13. He also relied laid down in Chalapathi Chit Fund (P) Ltd., Ongole Versus B.Rajasekhar and others 2013(6) ALD 625 and argued that Decree Holder got option to file Execution Petition for attachment and sale of immovable properties of Decree Holder that rightly observed by executing Court, he cannot file Execution Petition for arrest and detention of Judgment Debtor. He prays to dismiss the petition. 14. Now the issue that emerges for consideration of this Court is:- “Whether the Order under challenge is sustainable and tenable and whether the same warrants any interference of this court under Section 115 of C.P.C?” POINT:- 15. Before going to the merits of the case, it would be beneficial to quote Section 51 of CPC, which reads as under:- “Section 51. 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 of the decree- (a) xx xx xx (b) xx xx xx (c) by arrest and detention in prison 1 [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 2[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 refuses 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. 16. As per proviso (b) of Section 51 C.P.C, 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, means to pay the amount or some substantial part thereof and intentionally refused or neglected to pay the same. 17. The Hon’ble Apex Court in Rahul S.Shah case relied on by the learned counsel for the revision petitioner elaborately discussed necessity of disposing Execution Petition as early as possible and asking defendant in money suits, about list of his properties to avoid multiplicity of proceedings and to avoid delay in disposition Execution Petition in money decrees. 17. The Hon’ble Apex Court in Rahul S.Shah case relied on by the learned counsel for the revision petitioner elaborately discussed necessity of disposing Execution Petition as early as possible and asking defendant in money suits, about list of his properties to avoid multiplicity of proceedings and to avoid delay in disposition Execution Petition in money decrees. This Court in Gudiwada Munemma Versus Jawardhal case held that “the executing Court having recorded a finding that the Judgment Debtor has sufficient means to discharge the decretal amount, committed error in dismissing the execution petition. Therefore, the order impugned in the civil revision petition is not legal and proper and the same is liable to be set aside”. In the said case also Judgment Debtor not chosen to cross examine the Decree Holder failed to adduce any evidence challenging the evidence of Decree Holder. 18. This Court in Chalapathi Chit Fund (P) Ltd., Ongole Versus B.Rajasekhar and others held at Paras 3 and 4, which reads as under:- 3. At the outset, it needs to be held that the legal position regarding the right of the decree holder to proceed against the judgment debtors for recovery of the decreetal amount is not properly understood by the lower Court. 4. Under Order XXI Rule 30 r/w Section 51 CPC, the decree holder can simultaneously seek execution of the decree by delivery of property specifically decreed; by attachment and sale or by sale without attachment of any property; by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section or by appointing a receiver (See Shyam Singh v. Collector, District Hamirpur (1993) 1 SCC (Supp.) 693, Guvvala Sudhakara Reddy v. Katamreddy Venugopala Reddy 2006 (2) ALT 632 =2006(4) ALD (NOC 84) and K. Ravi Kumar Reddy and another v. M/s. ICDS Limited, rep. by its GPA Holder, H.K. Sreedhar 2012 (3) ALT 758 ). However, in Shyam Singh (1993) 1 SCC (Supp.) 693 (supra), the Supreme Court while recognizing existence of the right in the decree holder to resort to simultaneous execution of the decree through more than one method provided under Section 51 of CPC r/w Order XXI Rule 30 CPC, however, equally recognized existence of discretion of the Court to order simultaneous execution of the decree. It is held that while exercising such discretion, the Court must act in a judicious manner. Thus, while there is no legal bar on the petitioner in seeking arrest of respondent Nos. 2 and 3, the Court below has felt that when the said respondents are Government servants, the petitioner can recover the decreetal amount from their salaries instead of seeking their arrest. 19. The ratio laid down by this Court in Chalapathi Chit Fund (P) Ltd., Ongole Versus B.Rajasekhar and others case is that the Decree Holder has got right to resort the simultaneously execution of the decree. But observed as per facts in that case, as the Judgment Debtors are the Government servants Decree Holder can recovery the decretal amount from their salaries instead of seeking their arrest and also held that finding of executing Court that the Execution Petition for arrest is not maintainable ought to have modulated its view by observing that on the facts of the case, recovery of decretal amount through recovery of salary from respondents 2 and 3 shall be an appropriate course. 20. In the said decision, this Court never said that when Judgment Debtor is having immovable properties Decree Holder cannot proceed against the person and he can only proceed against the properties either immovable or movable properties of Judgment Debtor. 21. In the present case, the revision petitioner examined himself as PW.1, who also cross examined at length wherein he deposed that respondent/Judgment Debtor has got agricultural lands and he also filed certified copies of adangals to substantiate his contention, for which, there is no cross examination with regard to the aspect of Judgment Debtor owning agricultural lands but it is only suggested that the properties covered under Exs.P1 to P6 not being exclusive properties of Judgment Debtor happened to be the joint family properties, which also subject matter in O.S.No.24 of 2010 as such Judgment Debtor has no independent right over the properties mentioned in the documents. The said suggestion denied by the Decree Holder but Judgment Debtor not adduced any evidence either oral or documentary to support his contention that he is not in exclusive possession and enjoyment of agricultural lands shown in Exs.A.1 to A.7. The said suggestion denied by the Decree Holder but Judgment Debtor not adduced any evidence either oral or documentary to support his contention that he is not in exclusive possession and enjoyment of agricultural lands shown in Exs.A.1 to A.7. The Court below at Page 4 of the Order observed that documents filed by the Decree Holder in respect of agricultural lands of Judgment Debtor cannot be looked into as inadmissible in evidence as it is not proved through proper mode. Exs.A.1 to A.7 are certified copies of revenue records. As per Section 76 of Indian Evidence Act, 1872, public officer having the custody of a public document can issue certified copies duly certified the same as true copy and as per Section 79 of Indian Evidence Act, the Court shall presume to be genuine every document purporting to be a certificate, certified copy or other documents, which is by law declared to be admissible as evidence. Further, it is not the contention of Judgment Debtor in the cross examination of PW.1 that entries in Exs.A.1 to A.7 are false and he is not owning the land shown in the said documents. The learned counsel for the revision petitioner filed additional material papers containing the evidence of Pw.1 and copies of Exs.A.1 to A.6. On perusal of the same, which shows that respondent/Judgment Debtor is owning agricultural lands shown in Ex.A.6 pattadar pass book which stands in the name of respondent/Judgment Debtor which shows that he is having Ac.12.27 cents of dry land and Ac.5.20 cents of wet land, which issued by Mandal Revenue Officer, Kothavalasa. The said fact is not specifically denied during cross examination of PW.1. It is only the contention of the respondent/Judgment Debtor in his counter that he is not getting sufficient yield and income from agricultural land. He has not pleaded that he is not having any agricultural lands. The revision petitioner by filing Exs.A.1 to A.7 able to prove that the respondent/Judgment Debtor is having sufficient agricultural lands and it is improbably to believe that the respondent/Judgment Debtor continuously could not get any income from huge extent of the lands. He has not pleaded that he is not having any agricultural lands. The revision petitioner by filing Exs.A.1 to A.7 able to prove that the respondent/Judgment Debtor is having sufficient agricultural lands and it is improbably to believe that the respondent/Judgment Debtor continuously could not get any income from huge extent of the lands. As rightly argued by the learned counsel for the revision petitioner, there is no rebuttal evidence on the part of Judgment Debtor, who failed to adduce either oral or documentary evidence to substantiate his contention about not getting any income from huge extent of agricultural lands. The Court below failed to consider contents in Exs.A.1 to A.6 on wrong application of law though there is a presumption under Section 79 of Indian Evidence Act with regard to certified copies of public documents. It is not in dispute that during the course of enquiry, the respondent/Judgment Debtor paid Rs.20,000/-and Rs.40,000/-towards part satisfaction of decretal amount, which shows that the respondent/Judgment Debtor getting income from his agricultural lands, which fails to consider by the Court below. The revision petitioner/Decree Holder able to prove that the respondent/Judgment Debtor got sufficient extent of agricultural lands inspite of it he failed to discharge the decretal amount and petitioner/DHr has got right to proceed against either against person or against property of the respondent/Judgment Debtor, which failed to consider by the executing Court and erroneously dismissed Execution Petition filed by the revision petitioner/Decree Holder, which warrants interference of this Court under Section 115 C.P.C. Therefore, the Order impugned in the Civil Revision Petition is not legal and proper and the same is liable to be set aside. 22. In the result, the Civil Revision Petition is allowed, eight weeks time from today is granted to the respondent/Judgment Debtor to pay balance of Execution Petition amount, failing which, the executing Court shall issue arrest warrant against the respondent/Judgment Debtor and shall pass necessary Orders subject to the provisions of Sections 58, 55 and 59 C.P.C. No order as to costs. Consequently, miscellaneous petitions pending if any, shall stand closed.