IMPORTANT POINT
The court emphasized the need to establish an attitude of refusal on demand and the debtor's means to pay the decree or a substantial part of it.

JUDGMENT

A.V.SESHA SAI, J. - Heard Sri A.Raveendra Babu, learned counsel for the petitioners and Sri Kuncheam Maheswara Rao, learned counsel for respondent, apartfrom perusing the material on record.

2. Challenge in the present Civil Revision Petition filed under Sec. 115 of the Code of Civil Procedure, 1908 (for short 'the CPC') is to the Order, dtd. 20/10/2023, passed by the Court of VIII Additional District and Sessions Judge, Rajamahendravaram in E.P.No.814 of 2022 in A.C.No.443 of 2022.

3. The Arbitrator, passed an order against the 1st Petitioner and another on 30/6/2022. For realization of the amount covered by the said Award, the respondent herein filed E.P.No.814 of 2022 in A.C.No.443 of 2022 under Order 21 Rule 37 and 38 and Sec. 55 of the CPC, for arrest and detention of the 1st Petitioner into civil prison. The 1st petitioner herein contested the said Execution Petition by way of filing a counter. The learned VIII Additional District and Sessions Judge, Rajahmahendravaram, by way of Order, dtd. 20/10/2023, allowed the Execution Petition, directing the 1st Petitioner to pay the entire Execution Petition amount with costs on or before 20/11/2023 and further directed issuance of the Arrest warrant in the event of failure to comply the same. Hence, the present Civil Revision Petition under Sec. 115 of the CPC is filed before this Court by the Petitioner.

4. Sri A.Raveendra Babu, learned counsel for the Petitioners/Judgment debtors submits that the order of the learned Judge is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of Order 21 Rules 37 and 38 and Sec. 55 of the CPC. It is further submitted by the learned counsel that the Decree holder did not place on record any evidence about the existence of means of the 1st Petitioner to pay the Execution Petition amount. It is also submitted by the learned counsel that the learned Judge grossly erred in placing burden on the 1st Petitioner/Judgment debtor. In support of his contentions and submissions the learned counsel places reliance on the Judgment of the Hon'ble Apex court in the case of Jolly George Varghese and another Vs. The Bank of Cochin, (1980) AIR (SC) 470.

5. On contrary, Sri Kuncheam Maheswara Rao, learned counsel for the Respondent/Decree holder submits that there is absolutely no error nor their exists any infirmity in the order passed by the learned Judge and in the absence of the same, the impugned order is not amenable for correction under Sec. 115 of the CPC. It is also the submission of the learned counsel that in the affidavit filed in support of the Execution Petition, the Decree holder categorically stated about the existence of immovable and movable properties of the 1st petitioner, as such, the order of the learned Judge cannot be faulted.

6. The information available before this Court, in clear and vivid terms, discloses that in the Execution Petition on behalf of Decree holder one Sri T.Nageswara Rao was examined as PW.1 and the 1st Petitioner herein examined himself as RW.1. In the Chief affidavit, PW.1 stated that the 1st Judgment debtor is doing transport business at Rajahmundry, East Godavari District and he is earning Rs.50, 000.00 per month. He further stated that the 1st Judgment Debtor has movable and immovable properties in and around Rajahmundry and he is capable of paying amount to the Decree holder. In the Chief affidavit filed by the Judgment debtor/1st Petitioner herein, he categorically denied the same. Copy of the Cross examination of RW.1 is placed on record. A reading of the same shows that nothing can be elicited from the Cross examination of RW.1 about the existence of the property but curiously the executing Court placed burden on the Judgment debtors to disprove the version of the Decree holder. There is also no evidence on record to demonstrate the existence of the property in the name of the 1st Petitioner herein. The conclusion arrived at by the learned Judge is not in accord