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2023 Supreme(AP) 1554
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATHI
B.S. BHANUMATHI, J.
SRI POTHU PURUSHOTHAM REDDY - Appellant
Versus
SHAIK SABJAN - Respondent
Civil Revision Petition No. 2630 of 2022
Decided On : 11-08-2023
Headnote:(A) Civil Procedure Code, 1908 - Section 115, Provincial Insolvency Act, 1920 - Decree holder sought execution for arrest of the judgment debtor (JDr) in pending insolvency proceedings. Court ruled mere filing of insolvency does not prevent arrest. The JDr failed to obtain interim protection orders, thus the execution was valid. (Paras 1, 5, 6, 8)
(B) Legal principles - Judgment reasserted that entitlement to insolvency does not provide absolute immunity from arrest in execution under civil procedure unless interim protection is granted. Execution courts retain authority to act if no effective orders exist to protect the JDr. (Paras 7, 8)
Facts of the case:
The JDr, against whom execution proceedings were initiated, claimed insolvency and alleged the execution of arrest warrant should not proceed due to this pendency. The execution court determined that no interim orders were in place to protect the JDr.
Findings of Court:
The court found the executing court was justified in issuing the arrest warrant, confirming the lack of interim orders and the efficacy of the arrest.
Issues: The primary issues addressed were whether the mere filing of an insolvency petition prevents arrest in execution and the conditions under which such arrest can proceed.
Ratio Decidendi: The court emphasized that unless interim protection is granted in insolvency proceedings, the JDr could not escape arrest under execution, reaffirming the principle of enforcement of decrees and the executing court’s jurisdiction.
Result: Civil Revision Petition dismissed.
| Table of Content |
|---|
| 1. execution petition and arrears (Para 1 , 3 , 4) |
| 2. no interim protection without extension (Para 5 , 7) |
| 3. insolvency does not prevent arrest (Para 6 , 8) |
| 4. civil revision petition dismissed (Para 9 , 10 , 11) |
ORDER :
1. Cannot a JDr be arrested in an execution petition for recovery of money, if an insolvency proceeding filed by JDr is pending?
This revision, under Section 115 CPC, is filed against the order, dated 06.12.2022, allowing E.A. No. 114 of 2022 in E.P.No. 29 of 2016 in O.S. No. 118 of 2014 on the file of the Court of Principal Senior Civil Judge, Madanapalle, filed by the decree holder under Section 151 CPC read with Section 94(e) CPC to issue fresh warrant of arrest against the judgment debtor with police aid.
2. Heard Sri N. Pramod, learned counsel for the petitioner/judgment debtor and Ms. Ayesha Azma, learned counsel for the respondent/decree holder.
3. The facts stated by the petitioner, are briefly as follows:
The petitioner is the decree holder and he filed the execution petition seeking arrest of the judgment debtor for realization of the EP amount. The JDr took a plea that he has no means to pay the decree amount. Thereupon, the execution court conducted enquiry into the means and ordered arrest of the JDr on 04.04.2017 against which the JDr preferred a revision before the High Court and obtained a conditional order of stay and later the revision petition was dismissed. Thereafter, the JDr filed I.P. No. 7 of 2018 before the Court of Senior Civil Judge, Punganur, and failed to get interim protection orders. The JDr also filed C.R.P. No. 269 of 2020 for setting aside the decree in which the High Court passed conditional order to furnish security towards 25% of the suit claim and pay costs of Rs.5,000/- within four weeks from the date of the order which the JDr intentionally failed to comply. Thereafter, the Court ordered arrest of the JDr on 02.08.2022. The Amin who went for execution of the warrant found that the door of the house of the JDr was locked, and thereby, he could not execute the warrant. On that day, the JDr filed a petition seeking to stay the EP on the ground that he will produce protection orders in I.P. No. 7 of 2018.
4. The JDr filed I.P. No. 7 of 2018 and initially obtained an interim order of protection in I.A. No. 26 of 2018 and it was in force till 07.03.2022. The JDr contends that by mistake, it was not noticed that interim order was not extended subsequently, and therefore, the warrant of arrest in execution cannot be ordered against him. Since there is no order of interim protection, the executing court allowed the petition and ordered assistance of police of Madanapalli Police Station while executing the arrest warrant against the JDr.
5. So long as the petitioner does not get an interim order of protection, mere pendency of the insolvency proceedings do not give protection to him. The petition in E.A. No. 114 of 2022 was filed on 11.10.2022, and till now, the revision petitioner/JDr failed to get either extension of the interim protection earlier ordered or freshly granted. In the absence of any such order, there is no illegality or impropriety in the order passed by the executing court in E.A. No. 114 of 2022.
6. The learned counsel for the petitioner placed reliance on the decision of this High Court in Naraharisetti Thirupathi Rao v. Sathi Subbi Reddy, C.R.P. No. 1828 of 2019 , dated 20.01.2020 in support of his contention that the JDr is entitled to file insolvency proceedings as per Section 55 CPC. In this case when the JDr was produced on arrest in execution proceedings for recovery of money, as he informed that he had filed an insolvency petition, he was released under Section 55 CPC and the execution petition as closed giving liberty to the DHr to seek issuance of warrant for arrest of JDr, if he does not comply with the provisions of the Provincial Insolvency Act. Later, the insolvency petition was dismissed and the DHr filed a petition under Order XXI Rule 38 re
