Point of Law: Provisions under Section 51 C.P.C. read with Rule 37 of Order and (sic. are) concerned in the interest of the protection of the liberty and freedom of the J. Dr. which the Code considers to be of paramount importance. Any provision of law pertaining to the protection of such liberty and freedom of a citizen are (sic. is) to be construed as mandatory, violation of which, invariably results in vitiating the consequential order.

ORDER :

1. The present C.R.P. is filed under Section 115 of Code of Civil Procedure, 1908, (C.P.C.) assailing the Order, dated 29th September, 2021, passed in E.P. No. 84 of 2017 in A.C. No. 563 of 2011, on the file of XII Additional District Judge, Visakhapatnam, wherein the E.P. was allowed for realization of the amount awarded with interest.

2. The averments in the affidavit filed in support of the E.P. would show that the 1st Respondent herein represented by its General Power of Holder filed a Claim Petition before the Sole Arbitrator for recovery of the amount due under the loan transaction. An Award came to be passed against the Judgment Debtors for payment of a sum of Rs. 7,91,966.00. After obtaining the Award, Decree Holder requested the Judgment Debtors to pay the amount with interest and costs, but, there was no response. Hence, an Execution Petition came to be filed under Order XXI Rule 37 C.P.C. for realization of the E.P. amount, failing which to detain the 2nd Judgment Debtor in civil prison under Order XXI Rule 38 C.P.C. The averments further disclose that the 2nd Judgment Debtor is having sufficient means to pay the amount awarded but intentionally avoiding to pay the amount.

3. Counter came to be filed before the trial Court stating that the 2nd Judgment Debtor is aged about 64 years, having no work and business, suffering with ill-health for which he is taking treatment in different hospitals. It is stated that, because of his health condition, he is not able to work and earn money and, as such, the claim amount cannot be paid. It is further stated that, since, there is no income he cannot repay the amount due.

4. In support of its case, the Decree Holder examined PW-1, while 2nd Judgment Debtor got examined himself as RW1 and got marked Ex.B1 and Ex.B2.

5. After considering the material available on record, the trial Court found that the 2nd Judgment Debtor is doing business and his houses are not within the purview of Section 60 (1) C.P.C. It was further held that, 2nd Judgment Debtor has got sufficient means to pay the E.P. amount, but intentionally avoiding the same and, as such, he is liable for arrest and accordingly allowed the E.P. Challenging the same, the present C.R.P. is filed.

6. Sri. S.V.S.S. Sivaram, learned Counsel for the Petitioner, mainly submits that, in the absence of any evidence to show that the Petitioner has any property of his own or that he is earning, there cannot be any order of arrest. In other words, he would submit that, the 2nd Judgment Debtor (Petitioner) has no means to pay the amount and any action taken would be contrary to the provisions of C.P.C. and also to the ratio laid down in the judgments in G. Sudhakara Reddy vs. Jahnavi Chit Fund Private Limited and Others, 2006 (4) ALT 665 and Pandugayala Subbrayadu vs. Kattamuri Sree Krishna, 2008 (4) ALD 454. He further submits that the burden of proving that the 2nd Judgment Debtor has source of money to repay the debt is on the Decree Holder. But, strangely the trial Court inferred that the 2nd Judgment Debtor is withholding the documentary evidence, which if produced would establish that he has source of income to repay the amount.

7. On the other hand, Sri. Maheswara Rao Kuncheam, learned Counsel appearing for Respondent No. 1/Decree Holder, would contend that, a perusal of evidence on record show that the 2nd Judgment Debtor has properties and enough source of income to pay the amount. He further submits that, there is a deliberate and willful negligence on the part of Judgment Debtors to pay the amount and, as such, the Order under challenge requires no interference. Relying upon a judgment of this court in Konda Subbaiah vs. Yedoti Kamalakshaiah, 2008 (6) ALD 290 he would contend that, the executing court was right in drawing an inference that the Judgment Debtor has suppressed the material available with him.

8. In order to appreciate the same, it would be appropriate to refer to the two judgments relied upon by the Counsel fo