APHC010345672025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI [3332]

(Special Original Jurisdiction)

WEDNESDAY, THE EIGHTEENTH DAY OF MARCH TWO THOUSAND AND TWENTY SIX PRESENT THE HONOURABLE SRI JUSTICE RAVI CHEEMALAPATI CIVIL REVISION PETITION NO: 1633/2025 Between:

1. T hullibilli Venkateswarlu, S/o Ramaiah, Aged 60 years, Farmer, r/o D.No.5-42. Sri Rukminipuram Village, Machavaram Mandal, Palnadu District ...PETITIONER AND

1. P erugu Prasad, S/o Chandraiah, Agriculturist, Aged about 47 years, R/o D.No.12-35, Vemavaram Village, Machavaram Mandal, Palnadu District.

...RESPONDENT Petition under Article 227 of the Constitution of India, praying that in the circumstances stated in the grounds filed herein, the High Court may be pleased be pleased to set aside the order dated 21-04-2025 passed in E.P. No. 29 of 2019 in O.S. No. 28/2015 by the Civil Judge (Junior Division), Piduguralla consequently direct the Execution Court to conduct proper enquiry into the means of the Judgment Debtor in accordance with law and pass such IA NO: 1 OF 2025 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased may be pleased to suspend the order dated 21-04-2025 passed in E.P. No. 29 of 2019 in O.S. No. 28/2015 by the Civil Judge (Junior Division), Piduguralla including execution of warrant and pass such Counsel for the Petitioner:

1. SATYANARAYANA NIMMALA Counsel for the Respondent:

1.

The court made the following order:

The present civil revision petition is filed questioning the legality and correctness of the order dated 21.04.2025 in E.P.No.29 of 2019 in O.S.No.28 of 2015 on the file of learned civil judge (Junior Division), Piduguralla.

2. The petitioner is the J.Dr and the respondent is the D.Hr. The respondent filed O.S.No.28 of 2015 for recovery of money based on promissory note. The said suit was decreed on 30.10.2015. To realize the decreetal amount, the D.Hr filed EP.No.29/2019 under Order XXI Rule 37, 38 to issue notice, warrant and commit the J.Dr to the civil prison for realization of the decreetal amount, duly contending that, the J.Dr is earning Rs.20,000/- per month by doing business, also he has movable and immovable properties in his village, as such, he has financial capacity to pay the decretal amount but intentionally avoiding the same. To the said petition, the J.Dr filed his counter stating that, he is not doing any business and does not earn Rs.20,000/- per month, does not have any movable and immovable properties in his village, does not have any cash and that he is living on the mercy of his wife who attends coolie works. After hearing both the parties, the court below has allowed the E.P and ordered Rule 37(2) warrant against the J.Dr. under its order dated 21.04.2025. Assailing the said order, the J.Dr filed the present revision.

3. Heard Sri Nimmala Satya Narayana, learned counsel for the revision petitioner. Despite service of notice, there is no representation for the respondent.

4. Learned counsel for the revision petitioner in elaboration to what has been stated in the grounds of revision and the contents of the affidavit filed along with petition contended that, the execution court had miserably failed to conduct an enquiry as contemplated under Order XXI Rule 37. He further contended that, the executing court ought to have seen that, the warrant under Rule 37(2) can be made only upon satisfaction that the J.Dr has means to pay and is deliberately avoiding payment, but in the present case, though the burden lies on the D.Hr/respondent herein, without there being any evidence to show that the J.Dr is has capacity to pay the decretal amount and avoiding the same, the executing court issued Rule 37(2) warrant, which is erroneous and unsustainable. He further submitted that, the executing court had failed to follow the law laid down by the Apex court in Jolly George Varghese Vs Bank of Cochin, (1980) 2 SCC 360 wherein it was