Civil imprisonment for non-payment of decrees requires evidence of the debtor's financial capacity; failure of the creditor to prove asset ownership negates execution orders.

ORDER :

1. The learned counsel appearing for the petitioner submits that the petitioner is aggrieved by the order passed in E.P.No.69 of 2018 in O.S.No.279 of 2016 by the Junior Civil Judge, Vayalpad.

2. The respondent filed the execution petition under Order XXI Rules 37 and 38 of the CPC, seeking civil imprisonment of the petitioner. The learned Judge allowed the execution petition and issued an arrest warrant under Order XXI Rule 38 of the CPC against the petitioner on payment of Batta.

3. This Court, while admitting the Civil Revision Petition, directed the petitioner to deposit 50% of the decretal amount together with interest and costs within a period of six weeks from the date of the receipt of the order. The said order was passed on 30.12.2022. The petitioner complied with the directions of this Court and deposited 50% of the decretal amount together with interest and costs. Though the petitioner could not deposit the same within the stipulated period of six weeks, the same was deposited at a later point of time, and the respondent has withdrawn the said amount.

4. The learned counsel for the petitioner submits that the learned Junior Civil Judge erred in allowing the execution petition by relying on the submission of the respondent that the petitioner owns immovable properties and has capacity to discharge the decretal amount however is evading the payment and rendering the decree obtained by the respondent as a paper decree. It is pertinent to submit that the respondent could not submit any documents to evidence the ownership of immovable property in the name of the petitioner. The learned counsel for the petitioner further places reliance on the cross-examination of the respondent, wherein the respondent deposed that the petitioner has immovable property on his name. It is submitted that the respondent has not established before the Court, by submitting any document, evidencing ownership of immovable property on the name of the petitioner. Thus, the petitioner has deliberately chosen to avoid repayment of the decretal amount.

5. It is further submitted that the burden lies on the respondent to establish that the petitioner has immovable property which could be subjected to sale for realization of the decretal amount. It is submitted that in the absence of the respondent discharging his primary burden in proving that the petitioner has immovable property on his name, the liberty of the petitioner cannot be compromised. Reliance is placed on the judgment of the Hon’ble Supreme Court in the matter of Jolly George Varghese and another vs. The Bank of Cochin. The Hon’ble Supreme Court has held that, earlier income of the judgment debtor is immaterial and it is a duty of the executing court to inquire his present financial position and ability to satisfy the debt. The order of sending the judgment debtor to civil imprisonment without determining the above legal mandate, the same is violative of Article 21 of the Constitution of India.

6. The learned counsel for the petitioner submits that the learned Judge erred in allowing the execution petition and submits that the matter may be remanded for further consideration.

7. The learned counsel for the respondent submits that the respondent has submitted his chief examination before the execution court and also entered the witness box and was cross-examined by the petitioner. Though the petitioner filed a counter in the execution petition, the petitioner did not choose to examine himself and did not subject himself to cross-examination. The petitioner avoided examining himself before the execution court and, as such, cannot seek any relief before this Court.

8. It is also submitted that several opportunities were given to the p