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2025 DIGILAW 489 (AP)

Margadarsi Chit Limited v. Chikatla Satyanarayana

2025-03-19

V.R.K.KRUPA SAGAR

body2025
ORDER : (V.R.K. KRUPA SAGAR, J.) The decree holder filed this civil revision petition under Section 115 of Code of Civil Procedure assailing the order dated 20.04.2011 of the learned Principal Junior Civil Judge, Kakinada in E.P.No.223 of 2010 in O.S.No.823 of 2008. 2. There are four respondents shown in this revision. The 4 th respondent is shown as not a necessary party since no relief was claimed against her in the Court below. As against respondent Nos.1 to 3, notices were taken out and were served but none entered appearance. 3. Heard arguments of Sri K.M.R.Bala Prasad, the learned counsel representing Sri P.Durga Prasad, the learned counsel for revision petitioner/D.Hr. 4. The following facts are required to be noticed: M/s. Margadarsi Chit Fund Limited has been into chit fund business. Sri Ch.Satyanarayana joined as a subscriber and signed a chit agreement on 19.07.2007. The highest bidder prize amount was disbursed to him on 30.08.2007 at which time Sri P.Trimurthula Satyanarayana, Sri Ch.Venkata Appa Rao and Smt. Ch.Devi Prasantha Kumari assured the chit fund company and executed guarantee agreement stating that in the event of failure of payment of amount by the prized subscriber, they would pay the amount. After paying a few installments the chit subscriber Sri Ch.Satyanarayana committed default since 10.01.2008 and notices that were served on him and his guarantors did not yield any results. In such circumstances the chit fund company sued the chit subscriber under his three guarantors in O.S.No.823 of 2008 for recovery of Rs.91,467/-. After due contest, by judgment dated 08.07.2010 the learned Principal Junior Civil Judge, Kakinada decreed the suit in favour of the plaintiff-chit fund company and directed all the four defendants to discharge the decretal debt jointly and severally. The decree directions were not complied with. Demanding the judgment debtors to discharge the outstanding decree amount, the decree holder got issued a notice and raised oral demands on several occasions but they also did not yield any results. In such circumstances the decree holder filed E.P.No.223 of 2010 in O.S.No.823 of 2008 under Order XXI Rule 37 C.P.C. praying for notices and means enquiry and arrest and detention of judgment debtors in civil prison. Since the 4 th defendant/guarantor was a woman the execution was not initiated against her and it was initiated against defendant Nos.1 to 3/J.Dr.Nos.1 to 3. Notices were served on judgment debtor Nos.1 to 3. Since the 4 th defendant/guarantor was a woman the execution was not initiated against her and it was initiated against defendant Nos.1 to 3/J.Dr.Nos.1 to 3. Notices were served on judgment debtor Nos.1 to 3. They made their appearance through their learned counsel and filed counters stating that they had no means to discharge the decree debt and prayed for dismissal of the E.P. During means enquiry there was evidence of PW.1 and RW.1 and RW.2. After considering the evidence on record and the rival submissions, the Executing Court observed that the judgment debtors had no means to discharge the decree amount and therefore they could not be arrested and detained in civil prison and accordingly dismissed the execution petition. 5. Aggrieved by the said order, the decree holder is in this revision. 6. Learned counsel for the revision petitioner argued that the impugned order suffers from factual and legal errors and therefore it cannot be maintained and is required to be set aside. As mentioned earlier, the judgment debtors/respondents did not choose to contest this revision. 7. Sri Pilli Trimurthula Satyanarayana is J.Dr.No.2/respondent No.2. Speaking against him the evidence of PW.1 is that J.Dr.No.2 has been doing real estate business in the name and style of ‘Sujana Real Estates’ and he has also been doing contractual works and earning Rs.20,000/- per month. He further deposed that J.Dr.No.2 has been hale and healthy and has been attending his activities regularly and is capable of discharging the decree debt in full or at least in substantial part of it, but failed to pay and discharge the decree debt. During cross-examination he further said that J.Dr.No.2 also owns a Tata Indica Car and also owns a building at Ramaraopeta, Kakinada. As against such evidence it was expected that J.Dr.No.2-Sri Pilli Trimurthula Satyanarayana would have given his evidence. He did not enter the witness box. Though in his counter he stated that he had no means to discharge the decretal debt when once there was sworn evidence of PW.1 on record disclosing gainful profession on part of J.Dr.No.2 and owning of valuable assets, he did not choose to sustain his own contention of no means. Thus, the evidence of PW.1 so far as J.Dr.No.2 is concerned remained unchallenged. However, the learned Executing Court failed to advert to these aspects of the matter and dismissed the execution petition even as against J.Dr.No.2. 8. Thus, the evidence of PW.1 so far as J.Dr.No.2 is concerned remained unchallenged. However, the learned Executing Court failed to advert to these aspects of the matter and dismissed the execution petition even as against J.Dr.No.2. 8. Two aspects are stated here concerning J.Dr.No.2. From evidence it is clear that he had financial capacity to discharge the decree debt but refused to discharge it. The other aspect to be stated is that he being a guarantor he can be stated to be in fiduciary capacity and therefore not entitled to claim “no means” as was held in Shankareppa v. Thungabhadra Grameena Bank, Mudagal , [2000 0 Supreme(Kar) 169] . In such view of the matter the impugned order concerning J.Dr.No.2 cannot be sustained. 9. Sri Ch.Satyanarayana is J.Dr.No.1 and he is the one who subscribed the chit and benefited himself with the prize money. PW.1 in his evidence stated that this J.Dr.No.1 is the very brother of J.Dr.No.3. He further said that these two brothers have been doing auto transport business in the name and style of Lakshmi Ganapathi Consultants at Kakinada and they have been earning money less than Rs.10,000/- per month. He further deposed that each of them also owns an auto rickshaw and by hiring it they have been earning handsome amounts of money. J.Dr.No.1 in his evidence as RW.1 stated that he is a coolie and earning Rs.100/- per day. He further said that with that money he has to maintain his own family members and therefore he could not pay the decree debt. At paragraph No.4 of the examination-in-chief affidavit he stated that he is not liable to pay the decretal amount to the decree holder. No reason is mentioned as to why he is not liable to pay the decree debt. It is not a case of discharge of decree debt. Therefore, the averment in the counter amounts to refusal to discharge the decree debt. On behalf of the decree holder this RW.1 was examined in cross. When it came to cross- examination RW.1 changed his version. He said that he has been running an auto rickshaw on hire. He did not disclose who the owner of that auto rickshaw was and how much of the amount he has been paying to that owner. According to PW.1, J.Dr.No.1 owns that very auto rickshaw. When it came to cross- examination RW.1 changed his version. He said that he has been running an auto rickshaw on hire. He did not disclose who the owner of that auto rickshaw was and how much of the amount he has been paying to that owner. According to PW.1, J.Dr.No.1 owns that very auto rickshaw. The auto rickshaw has been in possession of J.Dr.No.1 and he holds exclusive knowledge as to who owns it. It was expected of him to show some material to the Court below to the effect that someone else owns the auto rickshaw and he has been using it only on hire. He failed to do that. According to PW.1, J.Dr.No.1 is one not only doing auto consultancy business but also doing cloth business. RW.1 in his examination-in-chief did not dispute about auto consultancy business he merely denied to have cloth business. The evidence on record would show that in the estimation of PW.1 J.Dr.No.1 has been earning not less than Rs.15,000/- per month from his businesses which include giving auto rickshaw on hire. 10. From the record it could be seen that the principal amount due was Rs.85,000/-. Along with accrued interest suit was decreed for Rs.91,467/-. Decree was passed in the year 2010. Execution petition was filed in the year 2011. It is always the duty of a judgment debtor to oblige the command of the Court contained in the decree and put his best efforts to discharge the decree debt. Section 51 of Code of Civil Procedure states that in those cases where 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, he could be arrested and detained in civil prison in execution of a money decree. By his evidence PW.1 has shown that J.Dr.No.1 and J.Dr.No.2 have got recurring source of income and businesses and immovable properties. By his evidence PW.1 demonstrated to the Court that they have means enough to pay at least a substantial part of the meager decree amount. Despite notices before levying execution, they did not pay and they even failed to give a reply notice. That indicates that they refused to discharge the decree debt. By his evidence PW.1 demonstrated to the Court that they have means enough to pay at least a substantial part of the meager decree amount. Despite notices before levying execution, they did not pay and they even failed to give a reply notice. That indicates that they refused to discharge the decree debt. J.Dr.Nos.1 and 2 did not disclose what have been the family commitments to them and how many family members are there and how they are dependents on them. Thus, they brought nothing on record except saying that they have been no means to pay. They have been changing their version as at one place they said that they are coolies and at another place they say something else. Thus, it is clear that they never intended to discharge the decree debt. Since the evidence on record amply demonstrated that they had enough means but refused to pay decree debt, the Executing Court ought to have ordered for their arrest and detention in civil prison. Since it failed to do it, the order has to be set aside to the extent of its dismissal against J.Dr.Nos.1 and 2. With reference to J.Dr.No.3 the impugned order does not require any interference since nothing is argued against that part of the impugned order. 11. In the result, this Civil Revision Petition is partly allowed. The order dated 20.04.2011 of the learned Principal Junior Civil Judge, Kakinada in E.P.No.223 of 2010 in O.S.No.823 of 2008 is set aside as against respondent Nos.1 and 2/J.Dr.Nos.1 and 2. Accordingly, E.P.No.223 of 2010 in O.S.No.823 of 2008 is allowed as against respondent Nos.1 and 2/J.Dr.Nos.1 and 2. The Executing Court is directed to secure their presence through warrants of arrest and grant them two days time to discharge the outstanding decree amount, failing which, it shall pass necessary order prescribing periods of detention as provided under law. There shall be no order as to costs. As a sequel, miscellaneous applications pending, if any, shall stand closed.