The judgment emphasized the requirement of evidence to establish the judgment-debtor's means to discharge the decree amount and highlighted the need to prove an attitude of refusal to pay, beyond mere indifference.

ORDER :

Heard learned counsel for the revision-petitioner. No representation for the respondents.

2. This revision-petition is filed against the Order, dated 09.07.2014 in E.P.No.14 of 2006 in O.S.No.89 of 1997 on the file of Senior Civil Judge’s Court, Sompeta.

3. The execution petition was filed by the revision-petitioner under Order XXI Rule 37 and 38 of the Civil Procedure Code, 1908 to send the 1st respondent/judgment-debtor to civil prison alleging that he was having means to discharge the decree amount, but he intentionally evading to discharge the decree amount with an intention to defeat the decree.

4. In the light of the above context, the point that arises for consideration is:-

“Whether the Executing Court committed any irregularity in the Order dated 09.07.2014 passed in E.P.No.14 of 2006 in O.S.No.89 of 1997?”

5. POINT:-

The Trial Court on consideration of the evidence of the decree-holder and the 1st respondent/judgment-debtor held that the decree-holder did not adduce any evidence to establish that the judgment-debtor is having means AS pleaded by the decree-holder. The Hon’ble Apex Court in Jolly George Varghese and another vs. The Bank of Cochin, AIR 1980 SC 470 at para Nos.10 and 11 held as under:

“To cast a person in person because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness. Unreasonableness and unfairness in such a procedure is inferable from Article 11 of the Covenant. As such, even though at any time after the passing of an old decree the judgment-debtor might have come by some resources but had not discharged the decree, he cannot be detained in prison under Section 51 read with Order 21 Rule 37 CPC, if at the later point of time he was found to be penniless. However, the simple default to discharge is not enough. 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 decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs and straitened circumstances will play prominently.”

5. In the revision petition on hand, it is an admitted fact that the decree-holder did not produce any evidence establishing that the 1st respondent/judgment-debtor has means to discharge the decree amount, except pleading that he is an Advocate, practising at Palasa. Therfore, there is no material which would show that the Trial Court exercised the jurisdiction illegally or with material irregularity. In that view of the matter, this Court does not find any ground to interfere with the Order of the learned Trial Judge.

6. Accordingly, the Civil Revision Petition is ‘Dismissed’. However, the decree-holder is at liberty to file fresh execution petition as per law. There shall be no order as to costs.

As a sequel, miscellaneous applications pending, if any, shall stand closed.