A judgment debtor can be arrested and detained in civil prison for non-payment of a decretal amount only if it is shown that he has the means to pay and intentionally neglected to pay.

JUDGMENT

Bandaru Syamsunder, J. - This Civil Revision Petition is filed by the petitioner/Decree holder/plaintiff under section 115 of Civil Procedure Code (in short CPC) against the Orders passed by the learned Principal Junior Civil Judge, Sompeta in EP No. 6 of 2013 in OS. No. 23 of 2010, wherein and whereby the learned trial Judge dismissed by the petition filed by the Decree holder seeking for arrest and detention of the respondent/Judgment debtor in civil prison in realization of his decretal amount.

2. The case of the revision petitioner in brief is that he obtained money decree against the respondent on 26.11.2012 for a sum of Rs. 29,500/- and after passing of the decree, he demanded the respondent to repay the decretal amount, but in vain. It is the contention of the petitioner before the trial Court that the respondent/Judgment debtor in spite of having movable and immovable properties and getting income, intentionally evading to pay the decretal amount due to that he is liable to be detained in civil prison.

3. The respondent filed counter before the trial Court, denying the allegations made in the affidavit of the petitioner. It is the contention of the respondent in his counter that he filed appeal suit 5 of 2013 on the file of Senior Civil Judge Court, Sompeta against the Judgment and decree, dated 26.11.2012 passed in OS. No. 23 of 2010 and the said appeal is pending. He submits that he has no means to pay the decretal amount and he is aged 65 years and suffering from ill-health and not liable for arrest and detention in civil prison. He prays to dismiss the petition.

4. On behalf of the petitioner, he himself examined PW. 1 and no documents were marked. On behalf of respondent, RW. 1, RW. 2 were examined and Exs. R1 to R5 were marked.

5. The learned trial Judge after hearing both sides, dismissed the petition on the ground that the Judgment debtor has no movable or immovable properties and he is suffering from Cancer as per Exs. R1 to R5, due to that he is not liable to be arrested and detained in civil prison.

6. Aggrieved by the Orders of the trial Court, the present Civil Revision Petition is filed by the petitioner stating that orders passed by the trial Court dismissing the execution petition is erroneous, contrary to law and amounts to failure to exercise the power vested in the Court. He submits that the respondent/Judgment debtor has got capacity to pay the decretal amount, but he is intentionally evading to pay the same and trial Court did not give any finding with regard to means of respondent and erroneously dismissed the execution petition, which is liable to be set aside. The petitioner also stated that medical certificates produced by the respondent marked as Exs. R1 to R5 pertaining to the period of March, 2010, but the execution petition is filed by him in the year 2013 by that time the Judgment debtor is hale and healthy which trial Court failed to consider. He prays to set aside the orders passed by the trial Court and allow the revision petition.

7. On 28.01.2015 and also on 12.02.2020 this Court permitted the petitioner to take out personal notice to respondent and file proof of service, which the petitioner has not complied. The learned Advocate for the petitioner proceed to submit arguments in the revision petition.

8. I have heard learned Advocate for petitioner in the revision petition.

9. It is the contention of the learned Advocate for the revision petitioner that the trial Court failed to give any finding with regard to means of respondent and wrongly placed heavy reliance on Exs. R1 to R5 which are pertaining to the year 2010. He prays to set aside the orders of the trial Court and allow the revision petition.

10. Now the point for determination is:-

'Whether the Orders passed by the trial Court dismissing the Execution petition filed by the petitioner are sustainable either in law or on facts?'

11. POINT:-

Before going to the merits of the case, it would be beneficial to quote Section 51 of CPC,