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2023 DIGILAW 1022 (AP)

G. v. Rama Krishna Rao VS Arumilli Karuna Kumar

2023-07-07

CHEEKATI MANAVENDRANATH ROY

body2023
ORDER : Assailing the order, dated 17.04.2023, passed in E.P.No.115 of 2022 in O.S.No.499 of 2016 on the file of the learned Principal Senior Civil Judge, Kakinada, whereby the petition filed under Order 21, Rule 11, Rule 37 and Rule 38 and Section 55 CPC, for issuance of warrant of arrest against the Judgment Debtor (J.Dr.) and to detain him in civil prison for realisation of the decretal amount, was allowed and warrant of arrest was issued under Rule 38 against the J.Dr. on payment of process, the present Civil Revision Petition has been preferred by the J.Dr. 2. Heard learned counsel for the petitioner and learned counsel for the respondent. 3. The parties will be referred to as they are arrayed in the Execution Petition filed seeking issuance of warrant of arrest and detention of the J.Dr. in the civil prison. 4. The decree holder (D.Hr.) has filed a Suit for recovery of the suit amount on the foot of a promissory note against the J.Dr. The said Suit was decreed against the J.Dr. on 06.02.2017. No appeal was preferred against the said judgment and decree. Therefore, the said judgment became final. As the J.Dr. failed to pay the decretal amount, the D.Hr. has earlier filed a petition for attachment of his salary as the J.Dr. is an employee. The said petition was allowed and attachment of salary was ordered. For about 24 months, the salary of the J.Dr. at the rate of Rs.2,300/- per month was attached. The D.Hr. has withdrawn the said amount by way of filing cheque petitions. During the said 24 months period, only a sum of Rs.1,42,600/- was realised towards decretal amount out of the total decretal amount of Rs.7,50,000/-. 5. As there is a bar for further attachment of the salary after the period of 24 months, till the cooling period of 12 months is completed after initial attachment of 24 months of salary, in order to realise the remaining part of the decretal amount, the D.Hr. has filed the petition under Order 21, Rule 37 and Rule 38 CPC for arrest of the J.Dr. and for his detention in civil prison to realise the decretal amount. 6. The said petition was allowed by the impugned order and the Executing Court ordered for issuance of warrant of arrest against the J.Dr. on payment of process. 7. has filed the petition under Order 21, Rule 37 and Rule 38 CPC for arrest of the J.Dr. and for his detention in civil prison to realise the decretal amount. 6. The said petition was allowed by the impugned order and the Executing Court ordered for issuance of warrant of arrest against the J.Dr. on payment of process. 7. Aggrieved thereby, the petitioner has filed this Civil Revision Petition questioning the legality and validity of the impugned order. 8. Learned counsel for the petitioner would seek to assail the impugned order on two grounds. It is contended that as the D.Hr. has already availed the remedy of attaching the salary of the J.Dr. and also realised a sum of Rs.1,42,600/- that he cannot again file this petition for arrest of the J.Dr. for realisation of the decretal amount. He would contend that eventhough cooling period of 12 months as prescribed under Section 60 CPC has to be completed for filing another petition for attachment of the salary, he has to wait till the said 12 months cooling period is completed and then seek attachment of the salary of the J.Dr. and having availed the said remedy of attachment of salary that he cannot now file a petition for arrest of the J.Dr. He would then contend that as can be seen from the language employed in Section 51 CPC, unless it is proved that having sufficient means to satisfy the decree that the J.Dr. is avoiding to pay the decretal amount that the arrest cannot be ordered and in the instant case, the D.Hr. failed to prove that J.Dr. got sufficient means to pay the decretal amount and thereby avoiding to pay the same. Therefore, he would contend that the impugned order is not sustainable under law and thereby prayed to set aside the impugned order and allow the Civil Revision Petition. In support of the said contention, he relied on the judgment of the Apex Court rendered in the case of Jolly George Varghese v. The Bank of Cochin, AIR 1980 SC 470 . 9. Repelling the said contentions, learned counsel for the respondent appearing for the D.Hr. would contend that as the attachment of the salary of the J.Dr. was ordered for 24 months, that in view of the bar contained in Section 60 CPC to seek further attachment that the D.Hr. 9. Repelling the said contentions, learned counsel for the respondent appearing for the D.Hr. would contend that as the attachment of the salary of the J.Dr. was ordered for 24 months, that in view of the bar contained in Section 60 CPC to seek further attachment that the D.Hr. cannot seek further attachment until 12 months cooling period as prescribed under Section 60 CPC has been completed. However, he would submit that there is nothing in law, which prohibits him from seeking the arrest of the J.Dr. and for his detention in civil prison for realising the decretal amount. He would submit that the option is with the D.Hr. to choose any of the modes prescribed in Section 51 CPC for execution of the decree and for realisation of the decretal amount and in exercise of one of the said options available to him that he has now availing the remedy of seeking arrest and detention of the J.Dr. in the civil prison. So, he would submit that the first contention raised by the learned counsel for the petitioner has no merit. As regards the second contention of the learned counsel for the petitioner is concerned, he would contend that admittedly the J.Dr. is an employee earning more than Rs.1.00 Lakh towards salary and as such, he got sufficient means to satisfy the decree and he has been deliberately avoiding to pay the decretal amount. So, he would contend that considering the said facts, the Executing Court has rightly allowed the petition and ordered for his arrest and the same is clearly sustainable under law. In support of his contentions, he relied on the judgment of the erstwhile High Court of Andhra Pradesh rendered in the case of Patnana Venkataramana v. Vungatla Appa Rao, 2010 (5) ALD 234 . Therefore, he would pray for dismissal of the Civil Revision Petition. 10. Thus, as can be seen from the contentions raised by the learned counsel for the petitioner, the contention of the petitioner in assailing the impugned order is twofold. As regards the first contention is concerned, record reveals that the D.Hr. has earlier filed a petition for attachment of salary of the J.Dr. and it was allowed and his salary was attached for a period of 24 months. As regards the first contention is concerned, record reveals that the D.Hr. has earlier filed a petition for attachment of salary of the J.Dr. and it was allowed and his salary was attached for a period of 24 months. As Section 60 CPC prohibits further attachment of salary after 24 months, and as cooling period of 12 months is prescribed to seek further attachment, the learned Judge has closed the said petition for attachment, by his order, dated 13.09.2017. Thereafter, as the D.Hr. could not further seek attachment of the salary in view of said bar contained in Section 60 CPC, he has filed the present petition for arrest and detention of the J.Dr. in civil prison for realisation of the remaining part of the decretal amount. By way of attachment of salary, out of Rs.7,50,000/- of the decretal amount, only a sum of Rs.1,42,600/- was realised. Therefore, still there is substantial amount due to be paid by the J.Dr. towards discharge of the decretal amount. Therefore, in view of the bar contained in Section 60 CPC to proceed with further attachment of salary, the D.Hr. has availed the other option available to him seeking arrest and detention of the J.Dr. in the civil prison under Order 21 Rule 37 and Rule 38 CPC. There is nothing in law, which prohibits him from availing the said remedy of arrest of J.Dr. and his detention in the civil prison. 11. Section 51 CPC deals with powers of Court to enforce execution. Various modes of execution of the decrees are enumerated therein. The D.Hr. can avail any of the said modes of execution for the purpose of realising the decretal amount. The option is with the D.Hr. to seek any one of the modes for execution. Initially, he has availed the option of executing the decree by way of salary attachment. After 24 months of attachment of the salary, in view of the bar contained in Section 60 CPC, he cannot proceed with further attachment of salary of the J.Dr. Therefore, in the said circumstances, he has now availed the other option of seeking arrest and detention of the J.Dr. in the civil prison. The D.Hr. is entitled to seek execution of the said decree by way of arrest and detention of the J.Dr. in the civil prison. 12. Therefore, in the said circumstances, he has now availed the other option of seeking arrest and detention of the J.Dr. in the civil prison. The D.Hr. is entitled to seek execution of the said decree by way of arrest and detention of the J.Dr. in the civil prison. 12. Recently, this Court had an occasion to deal with the similar issue in the case of Bandaru Satyanarayana v. Siddantapu Satyasai Babu, 2023 (2) L.S. 99 (A.P.). As per the facts of the said case also, the D.Hr. has sought execution of the decree by way of attachment of salary of the J.Dr. It was allowed and the salary was attached for a period of 24 months under Order 21 Rule 48 CPC. Thereafter, in view of the gap of 12 months period that is prescribed under Section 60 CPC, he has filed an E.P. for arrest of the J.Dr. and his detention in the civil prison. The Executing Court dismissed the said petition filed under Order 21, Rule 37 and Rule 38 CPC for arrest and detention of the J.Dr. in civil prison on the ground that the D.Hr. has to wait for a period of 12 months and then again file a petition for attachment of the salary. When the said order was challenged before this Court, this Court has set aside the said order and held that the option is with the D.Hr. and after attachment of 24 months of the salary, in view of the cooling period of 12 months, which prohibits further attachment, that he can seek the remedy of arrest and detention of the J.Dr. under Order 21, Rule 37 CPC. In arriving at the said conclusion, this Court has relied on the earlier judgment of the erstwhile High Court of Andhra Pradesh rendered in the case of Raghavarapu Nageswara Rao v. Tenneti Venkata Lakshmi Narayana, 1997 (6) ALT 762 . 13. Therefore, the contention of the petitioner raised that the petition under Order 21 Rule 37 and Rule 38 CPC is not maintainable and that the D.Hr. has to wait for 12 months and then only he has to again file a petition for attachment of salary, is devoid of merit and it is legally unsustainable. 14. As regards the second contention of the learned counsel for the petitioner that the D.Hr. has failed to prove that J.Dr. has to wait for 12 months and then only he has to again file a petition for attachment of salary, is devoid of merit and it is legally unsustainable. 14. As regards the second contention of the learned counsel for the petitioner that the D.Hr. has failed to prove that J.Dr. got sufficient means to discharge the decretal amount and that he has been deliberately avoiding to pay the same and as such, his arrest and detention in civil prison cannot be ordered is concerned, he would submit that clause (b) of the proviso to Section 51 CPC mandates that the arrest of the J.Dr. cannot be ordered unless it is proved that the J.Dr. has since the date of decree the means to pay the amount of decree or substantial part thereof and thereby neglected or refused to pay the same. So, he would contend that the D.Hr. has failed to prove the said mandatory requirement. So, the order of the trial Court is bad in law on that ground. In support of his contention, as noticed supra, he relied on the judgment of the Apex Court rendered in the case of Jolly George Varghese (Supra), wherein it is held that when the J.Dr. has no means to pay the decretal amount after the date of decree and when there is absence of mala fides and dishonesty on his part in satisfying the decree that arrest and detention under Order 21 Rule 37 CPC cannot be ordered and if any such arrest and detention is ordered that is violative of Article 11 of International Covenant on Civil and Political Rights and also of Article 21 of the Constitution of India. 15. However, as can be seen from the material available on record, there is sufficient evidence on record to prove that the J.Dr. has sufficient means to pay the decretal amount and thereby deliberately neglected and refused to pay the decretal amount and rendered himself liable for arrest and detention in the civil prison. Admittedly, the J.Dr. is an employee working as Senior Assistant in APCPDCL, Kakinada. He has been drawing gross salary of Rs.1,44,638/- p.m. As per the pay slip, which is produced, total deductions is shown as Rs.90,839.44 ps. and his take home salary is Rs.53,799.00 ps. Admittedly, the J.Dr. is an employee working as Senior Assistant in APCPDCL, Kakinada. He has been drawing gross salary of Rs.1,44,638/- p.m. As per the pay slip, which is produced, total deductions is shown as Rs.90,839.44 ps. and his take home salary is Rs.53,799.00 ps. and out of the huge amount of deductions of Rs.90,839.44 ps., only statutory deductions are liable to be excluded from his income as other deductions are towards his savings. Therefore, when he is earning gross salary of Rs.1,44,638/- p.m., it cannot be said under any stretch of reasoning that he has no means to pay the decretal amount. 16. The Executing Court also, after considering Ex.P.1 pay slip, found that he is getting salary of more than Rs.1.00 Lakh and held that he got financial capacity to pay the decretal amount. The said finding is based on evidence adduced before the Executing Court and on proper appreciation of the same. 17. Therefore, the said contention of the J.Dr. that he has no means to pay the decretal amount and that he did not deliberately neglect or refuse to pay the decretal amount and that he is not liable for arrest and detention in civil prison is also devoid of merit and it cannot be countenanced. 18. In the judgment, relied on by the learned counsel for the D.Hr., rendered in the case of Patnana Venkataramana (Supra), it is held that when the J.Dr. is a salaried employee and when the D.Hr. has chosen any one of the modes of execution available to him, that merely because the J.Dr. is a salaried employee, the argument of the J.Dr. that the D.Hr. has to only realize the amount by way of attachment of the salary, but not by way of arrest and detention of the J.Dr. in civil prison, has no foundation in law. Further held that the finding of the Executing Court that the J.Dr. has sufficient means to repay the decretal amount and willfully evading to pay the same is based on evidence and the impugned order does not call for any interference. The said judgment squarely applies to the present facts of the case. 19. Therefore, both the grounds on which the J.Dr. sought to assail the impugned order are devoid of merit and they are legally unsustainable. The said judgment squarely applies to the present facts of the case. 19. Therefore, both the grounds on which the J.Dr. sought to assail the impugned order are devoid of merit and they are legally unsustainable. The impugned order of the trial Court is perfectly sustainable under law and it does not call for any interference in this Civil Revision Petition. Therefore, the Civil Revision Petition fails and it is liable to be dismissed. 20. In fine, the Civil Revision Petition is dismissed. No costs. Consequently, miscellaneous applications, pending if any, shall also stand closed.