ORDER:

Since the execution Court dismissed the execution petition observing that DHr failed to prove means of JDr in spite of holding the fact that JDr has immovable properties under exhibits P1 and P2, this revision petition, under Section 115 of the Code of Civil Procedure, 1908, arose out of order, dated 24.04.2019, passed in E.P.No.100 of 2018 in O.S.No.182 of 2019, on the file of the Court of the Additional Senior Civil Judge, Ongole, filed under Order XXI Rules 37 & 38 CPC for realization of the decretal amount of Rs.4,71,008/- with subsequent interest by committing the JDr to civil prison.

2. Heard Sri Ancha Panduranga Rao, learned counsel appearing for the revision petitioner/DHr. In spite of service of notice, there is no representation for the respondent/Judgment Debtor (JDr).

3. The facts necessary and relevant, in brief, are as follows: The DHr filed a suit in O.S.No.182 of 2017 on the file of the Court of Additional Senior Civil Judge, Ongole, against the JDr for recovery of Rs.4,02,166/- with subsequent interest. The suit was decreed on 06.08.2018. According to the DHr, the JDr has means to discharge the decree debt in lump sum, as he is earning Rs.1 lakh per month by running Micro Studio in Vijaya Complex, Ongole and Rs.20,000/- per month by letting out shop No.1 in Sastry Complex, Kurnool Road, and further has Ac.1.96 cents agricultural land in Sy.No.312 of Ponduru villge and a house, besides land of 19 ½ cents in S.No.578 of Pernimetta worth Rs.20 lakh; but, as JDr has intentionally evaded to discharge the debt, in spite of several demands by DHr, having no other alternative, the execution petition was filed to commit JDr to civil prison for realization of the decreed debt.

4. Per contra, JDr filed counter in the execution petition denying the allegations and contending that he did not possess any properties and that he never borrowed any amount from the DHr. It is further averred that he is suffering from ill-health and unable to earn anything and the DHr made all false allegations only to harass him. Finally, it is prayed to dismiss the petition.

5. After conducting enquiry by examining the DHr as PW1 and JDr as RW1 and on considering documentary evidence, i.e., exhibits P1 and P2, the execution Court dismissed the execution petition holding that the decree holder failed to prove that the JDr is getting income on the properties covered by the sale deeds under exhibits P1 and P2. Aggrieved thereof, the DHr filed this revision petition.

6. Now the point for consideration is:

Whether the DHr established that the JDr has means yet failed to discharge the decreed amount for ordering the execution of the decree by arrest and detention of the JDr in civil prison? and if so, whether the impugned order is unsustainable?

7. POINT:

Section 51 and Order XXI, Rule 37 to 40 of the Code deal with execution of the decree by arrest and detention of the JDr in prison where arrest and detention is permissible. The proviso to Section 51 mandates that where the decree is for payment of money, execution by detention in prison shall not be ordered unless, after giving the JDr an opportunity of showing cause why he should not be committed to prison and unless the Court, for reasons to be recorded in writing, is satisfied that the judgment debtor is or has had since the date of decree the means to pay the amount of the decree or some substantial part thereof and had refused or neglected to pay the same.

8. The execution Court relied on a decision of the Supreme Court in Jolly George Varghese and another v. The Bank of Cochin1

1 AIR 1980 SC 470

in support of its conclusions that the arrest of the JDr cannot be ordered unless it is established that there is an element of bad faith beyond mere inability to pay and that it is for the DHr to establish that the JDr has the ability to pay, but, he had improperly evaded or postponed to do so and that the JDr is not liable for arrest unless the said burden is discharged by the DHr. The execution Court