THE HON’BLE SRI JUSTICE T. VINOD KUMAR CIVIL REVISION PETITION No.854 of 2025

ORDER

This Civil Revision Petition is filed under Section 115 C.P.C. against the order dated 04-03-2025 passed in E.P.No.9 of 2023 in O.S.No.600 of 2023 on the file of the I Additional Junior Civil Judge Court at Nalgonda.

2. The petitioner herein is the Judgment-Debtor (J.Dr.) and defendant in the E.P. as well as in the suit filed by the respondent herein as plaintiff/Decree-Holder (D.Hr).

3. The above mentioned suit was filed for recovery of money basing on promissory notes. The aforesaid suit filed by the respondent herein was decreed ex parte on 11-07-2022.

4. The respondent/D.Hr, after obtaining ex parte order in the aforesaid suit filed by him, had filed the underlying Execution Petition under Order XXI Rule 11(2) C.P.C. claiming that though the petitioner/J.Dr. is having sufficient means to pay the decretal amount to the respondent herein, but is intentionally not paying the same and did not abide the orders of the Court.

5. The respondent further claimed that since the petitioner herein failed to satisfy the decree, it is necessary to put him in civil imprisonment for realization of the decretal amount as per Order XXI Rule 37 C.P.C.

6. Petitioner contends that the trial Court had issued notice of the aforesaid petition filed, to which he had filed; that the respondent/D.Hr. had examined himself; and that Court thereafter had passed the impugned order allowing the underlying Execution Petition directing the petitioner herein to be detained in civil prison for a period of three months.

7. Petitioner contends that the trial Court while allowing the aforesaid Execution Petition, did not record any finding as to the means of petitioner to satisfy the decree and despite the same petitioner avoiding to pay the decretal amount.

8. It is the further case of the petitioner that despite the petitioner filing counter to the Execution Petition claiming that only after moving the Execution Petition against the properties held by the petitioner/J.Dr. in order to recover the decretal amount, the Execution Petition for arresting the J.Dr. and sending him to civil prison is maintainable and the respondent without taking any steps, has straightaway filed underlying Execution Petition for sending the petitioner/J.Dr. to civil imprisonment in terms of Order XXI Rule 31 CPC and the trial Court also erred in allowing the said application and seeks for setting aside the same.

9. Per contra, learned counsel for the petitioner contended that the petitioner, despite having means to satisfy the decree, has failed to pay the same.

10. On behalf of the respondent, it is further contended that the petitioner never pleaded in the suit nor in the Execution proceedings of he not having means to satisfy the decree, and thus, the claim now made before this Court of petitioner not having means to pay the decree amount is only to evade the payment due under the decree and to get over the order directing civil imprisonment.

11. I have taken note of respective contentions urged.

12. Before adverting to respective contentions, it is important to note that in an Execution Petition filed under Order XXI Rule 37 r/w Section 51 CPC, the burden is the on the D.Hr to satisfy the Court that the respondent/J.Dr. despite having means to pay the decretal amount, has failed to discharge the liability under the decree for the Court to order for civil imprisonment. The order of J.Dr. to civil imprisonment for not satisfying the decree should be the last resort, as the same violates his fundamental right to life.

13. In the facts of the present case, the respondent herein by filing the underlying Execution Petition under Order XXI Rule 11(2) CPC except stating that the petitioner/J.Dr is having sufficient means to pay the decretal amount and is intentionally not paying the same, did not disclose as to the means by which the petitioner could have satisfied the decree. Even in the cross- examination of respo