APHC010108352020 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3560]

(Special Original Jurisdiction)

THURSDAY,THE EIGHTEENTH DAY OF DECEMBER TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE SRI JUSTICE SUBHENDU SAMANTA CIVIL REVISION PETITION NO: 767/2020 Between:

1. B ACHU NAGESWARA RAO, S/O PEDDA SUBBAIAH, AGED ABOUT 53 YEARS, HINDU, RESIDENT OF D.NO. 7/142, AMMAVARISALA STREET, BADVEL TOWN AND MANDAL, YSR KADAPA DISTRICT.

...PETITIONER AND

1. K OLAPARTHI MOUNIKA, D/O VENKATA SUBBA RAO, AGED ABOUT 27 YEARS, HINDU, PRIVATE EMPLOYEE, RESIDENT OF D.NO. 3-2-837, MAIN BAZAAR, PORUMAMILLA ROAD, BADVEL TOWN AND MANDAL, YSR KADAPA DISTRICT.

...RESPONDENT Counsel for the Petitioner:

1. KALEEMULLA S Counsel for the Respondent:

1. PENJURI VENUGOPAL The Court made the following:

ORDER:

This Civil Revision Petition is preferred challenging the order passed by the learned Executing Court in E.P. No. 6 of 2017, filed under Order XXI Rules 37 and 38 CPC, in O.S. No. 122 of 2015.

2. On the prayer of the decree holder, learned Court below has passed an order in E.P.No.6 of 2017 against the petitioner/judgment debtor committing him to the civil prison for a period of three months and issued arrest warrant which is under challenge in the instant civil revision petition.

3. Learned counsel for the petitioner, at the outset, submits that the impugned order passed by the learned Court below is illegal and improper. He submits that the Executing Court, without following the proper procedure, straightaway issued a warrant of arrest against the petitioner. The suit was filed for recovery of money, and when it was fructified into execution, the decree holder ought to have satisfied the Court that the judgment debtor had sufficient means to pay the decretal amount. In this case, the decree holder was examined only as P.W.1, and only certified copy of the decree was placed on record; no other documentary evidence was placed before the Executing Court, by which the Executing Court could be satisfied that the judgment debtor had sufficient means to pay the amount. He submits that the High Court of Madras, in T. Dharmalingam v. K.P. Bharathi and others, reported in 2017 SCC OnLine Mad 8254, has held that in execution of a decree, the decretal Court shall firstly proceed to attach the property of the judgment debtor. Thereafter, if such procedure fails, then only an order for issuance of a warrant of arrest to commit the judgment debtor to civil prison may be passed, but in this case the Executing Court straightaway issued the arrest warrant to commit the judgment debtor to civil prison. He further submits that the decree holder has failed to prove the criteria for issuance of an arrest warrant against the judgment debtor. Hence, the order passed by the learned Court below is liable to be set aside.

4. Learned counsel for the respondent/decree holder submits that the suit was filed for recovery of money amounting to Rs.1,82,625/-. In spite of service of summons upon the defendant/petitioner herein, he did not turn up. Accordingly, the suit was decreed ex parte. The decree holder filed the execution petition. The summons in the execution petition was served on the judgment debtor. Before the learned Executing Court, the petitioner was examined as P.W.1, and on behalf of the respondent, R.W.1 and R.W.2 were examined. He further submits that the present judgment debtor has property, bank balance, and jewellery. Moreover, he is engaged in the business of real estate, but only to harass the decree holder, he is not paying the meagre decretal amount. He further submits that R.W.1 and R.W.2 were examined, but they have not stated anything regarding their inability to pay the decretal amount. He further submits that the learned Court below, in compliance with the provisions under Order XXI Rules 37 and 38 of the CPC, has passed the impugned order.

5. Heard learned counsel for the parties. Perused the impugned order passed by the Court below.

6. It appears that, in decid