Judgment debtors with means to pay a decree but refusing to do so can be arrested and detained in civil prison under CPC provisions.

ORDER :

(V.R.K. KRUPA SAGAR, J.)

The decree holder filed this civil revision petition under Section 115 of Code of Civil Procedure assailing the order dated 20.04.2011 of the learned Principal Junior Civil Judge, Kakinada in E.P.No.223 of 2010 in O.S.No.823 of 2008.

2. There are four respondents shown in this revision. The 4^th respondent is shown as not a necessary party since no relief was claimed against her in the Court below. As against respondent Nos.1 to 3, notices were taken out and were served but none entered appearance.

3. Heard arguments of Sri K.M.R.Bala Prasad, the learned counsel representing Sri P.Durga Prasad, the learned counsel for revision petitioner/D.Hr.

4. The following facts are required to be noticed:

M/s. Margadarsi Chit Fund Limited has been into chit fund business. Sri Ch.Satyanarayana joined as a subscriber and signed a chit agreement on 19.07.2007. The highest bidder prize amount was disbursed to him on 30.08.2007 at which time Sri P.Trimurthula Satyanarayana, Sri Ch.Venkata Appa Rao and Smt. Ch.Devi Prasantha Kumari assured the chit fund company and executed guarantee agreement stating that in the event of failure of payment of amount by the prized subscriber, they would pay the amount. After paying a few installments the chit subscriber Sri Ch.Satyanarayana committed default since 10.01.2008 and notices that were served on him and his guarantors did not yield any results. In such circumstances the chit fund company sued the chit subscriber under his three guarantors in O.S.No.823 of 2008 for recovery of Rs.91,467/-. After due contest, by judgment dated 08.07.2010 the learned Principal Junior Civil Judge, Kakinada decreed the suit in favour of the plaintiff-chit fund company and directed all the four defendants to discharge the decretal debt jointly and severally. The decree directions were not complied with. Demanding the judgment debtors to discharge the outstanding decree amount, the decree holder got issued a notice and raised oral demands on several occasions but they also did not yield any results. In such circumstances the decree holder filed E.P.No.223 of 2010 in O.S.No.823 of 2008 under Order XXI Rule 37 C.P.C. praying for notices and means enquiry and arrest and detention of judgment debtors in civil prison. Since the 4^th defendant/guarantor was a woman the execution was not initiated against her and it was initiated against defendant Nos.1 to 3/J.Dr.Nos.1 to 3. Notices were served on judgment debtor Nos.1 to 3. They made their appearance through their learned counsel and filed counters stating that they had no means to discharge the decree debt and prayed for dismissal of the E.P. During means enquiry there was evidence of PW.1 and RW.1 and RW.2. After considering the evidence on record and the rival submissions, the Executing Court observed that the judgment debtors had no means to discharge the decree amount and therefore they could not be arrested and detained in civil prison and accordingly dismissed the execution petition.

5. Aggrieved by the said order, the decree holder is in this revision.

6. Learned counsel for the revision petitioner argued that the impugned order suffers from factual and legal errors and therefore it cannot be maintained and is required to be set aside. As mentioned earlier, the judgment debtors/respondents did not choose to contest this revision.

7. Sri Pilli Trimurthula Satyanarayana is J.Dr.No.2/respondent No.2. Speaking against him the evidence of PW.1 is that J.Dr.No.2 has been doing real estate business in the name and style of ‘Sujana Real Estates’ and he has also been doing contractual works and earning Rs.20,000/- per month. He further deposed that J.Dr.No.2 has been hale and healthy and has been attending his activities regularly and is capable of discharging the decree debt in full or at least in substantial part of it, but failed to pay and discharge the decree debt. During cross-examination he further said that J.Dr.No.2 also owns a Tata Indica Car and al