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IN THE HIGH COURT OF ANDHRA PRADESH
P.S. NARAYANA, J
Buddana Nageswara Rao — Appellant
Versus
Yendeevi Sri Anjaneyulu — Respondent
C.R.P. No. 32 of 1999
Decided on : 14-09-2001
Civil Procedure Code - Rule 40 - Order 21 – Evidence – Interests – Jurisdiction - Learned Counsel had made elaborate submissions on meaning of word means and burden of proof relating to means and what are essentials to be proved by Decree holder for getting relief of arrest and detention for realization of amount in a money decree - Learned Counsel also had placed reliance on following decisions – Held, After going through order of Court below court satisfied that Decree-holder had not placed sufficient material to prove means of Judgment-debtors and Court below had arrived at correct conclusion as far as Judgment-debtor is concerned and said finding relating to means may have to be applied even in case of Judgment-debtor also son since as already discussed supra do not in any way come in aid of Decree-holder in discharging burden of proof which Decree-holder is expected to do while seeking arrest and detention Judgment-debtors in execution of a money decree - Since evidence on record available is not sufficient in interests of justice matter has to be remitted back to Court below for affording opportunity to both parties for letting in further evidence if any on aspect of means of Judgment-debtors - Courts may also examine whether other modes of recovery are available to decree-holder and is it necessary to order arrest for recovery of amount and whether Judgment-debtors are willfully and intentionally neglecting to discharge decree debts and Courts court examine relevant circumstances also in this regard - Even while making an order of arrest in default of appearance of Judgment-debtors Courts have to prima facie satisfy themselves on material placed before them that an order of arrest can be made - Petition is allowed
ORDER :
P.S. Narayana, J.
The Civil Revision Petition is filed by 2nd Judgment-debtor in E.P. No. 26/97 in O.S. No. 67/97 on the file of Senior Civil Judge, Machilipatnam.
2. The respondent-Decree-holder filed E.P. No. 26/97 in O.S. No. 67/97 on the file of Senior Civil Judge, Machilipatnam against two Judgment-debtors, the father and the son, seeking their arrest for realization of the decretal amount. On behalf of the Decree-holder, P.W.1 was examined and on behalf of the Judgment-debtors, they had examined themselves as R.Ws.1 and 2 and Exs.B-1 and B-2 were marked. The Court below had arrived at the conclusion that the Decree-holder is not entitled to seek the arrest of Judgment-debtor No.1 i.e. the father, but had ordered the arrest and detention of Judgment-debtor No. 2 only and Judgment-debtor No. 2, aggrieved by the said order had filed the present Civil Revision Petition.
3. Sri Ram Gopal, learned Counsel appearing for the Revision Petitioner had made elaborate submissions and had contended that the evidence available as against Judgment-debtors 1 and 2 is one and the same and the Court below had totally erred in ordering the arrest of Judgment-debtor No. 2 having arrived at the conclusion that the arrest of Judgment-debtor No. 1 cannot be ordered. The learned Counsel also had submitted that Ex.B-1 is sale deed dated 23-7-1990 which shows Ac. 1.00 of land in the name of the wife of Judgment-debtor No. 2 and Ex.B-2 is a certificate issued by S.B.I, showing that he stood as guarantor. The learned Counsel also had pointed out paragraph-11 of the order of the Court below wherein it was recorded that the evidence is sufficient to conclude that the Judgment-debtor No. 1 has properties and means to pay the decretal amount or part thereof. The learned Counsel also had contended when that is the finding relating to the means of the Judgment-debtor No. 1, it cannot be said that the Judgment-debtor No. 2 is having means. The learned Counsel also had contended that the mere fact that Ex.B-1 was marked on behalf of Judgment-debtor No. 2 does not alter the situation in any way while deciding whether the Judgment-debtor No. 2 is having means to pay the decretal amount or not. The learned Counsel had made elaborate submissions on the meaning of the word "means" and the burden of proof relating to "means" and what are the essentials to be proved by the Decreeholder for getting the relief of arrest and detention for realization of the amount in a money decree. The learned Counsel also had placed reliance on the following decisions:
4. Sri Rama Krishna, the learned Counsel representing Sri Prabhakar Rao had contended that at paragraph-13 of the order of the Court below, a clear finding had been recorded that Judgment-debtor No. 2 is having means to pay the decretal amount or part thereof and hence the Court below is justified in ordering the arrest of the Judgment-debtor No. 2.
5. Heard both the Counsel and also perused the material available on record. In the decision referred (6) supra, it was held that if the wife has her own property the presumption is that she acts on her own and by implied authority the wife acts as agent of the husband making the latter liable for expenditure incurred by her in respect of necessaries of life and there cannot be any such implied authority in case where the wife owns separate properties and marriage will not make the husband an agen
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