Andhra Pradesh High Court - Amravati
Thullibilli Venkateswarlu vs Bank Of Cochin1 Wherein It Was Held That A ... on 18 March, 2026
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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. Thullibilli Venkateswarlu, S/o Ramaiah, Aged 60 years, Farmer, r/o
D.No.5-42. Sri Rukminipuram Village, Machavaram Mandal, Palnadu
District
...PETITIONER
AND
1. Perugu 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 2 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 3 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 Cochin1 wherein it was held that a debtor cannot be imprisoned merely for inability to pay a debt, upholding Article 21 (Right to Life and Personal Liberty). Accordingly, prayed to allow the revision. 1 (1980) 2 SCC 360 4
5. Perused the record and considered the submissions of the learned counsel.
6. Order XXI Rule 37 reads thus:
"37. (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise, that, with the object or effect of delaying the execution of the decree, the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-
debtor."
7. The above provisions provide that, before issuing a warrant of arrest under Rule 37(2), a notice under Rule 37(1) may be issued calling upon debtor to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison. In Jolly George Varghese (supra), the Apex court has held that the detention can be ordered only upon proving that the J.Dr has means and is refusing to pay willfully and that mere presumption of capacity to pay is insufficient.
8. In the present case, when the J.Dr has taken a stand that he has no means to pay the decreetal amount and that he is dependent on his wife who is attending coolie works, the burden lies on the D.Hr to prove that J.Dr has sufficient means to pay the decreetal amount, with cogent evidence. But the D.Hr has failed to adduce any evidence in that regard. 5
9. The court below, without looking into the said aspects, has straight away issued Rule 37(2) warrant against the J.Dr without issuing Rule 37(1) notice and allowed the E.P., though the D.Hr has failed to prove that the J.Dr has sufficient means to discharge the decreetal amount and that he is purposefully evading the same. Therefore, the said order is erroneous and is liable to be set aside.
Accordingly, the CRP is allowed and the order dated 21.04.2025 in E.P.No.29 of 2019 in O.S.No.28 of 2015 is hereby set aside. No orders.
Miscellaneous applications, pending if any, shall stand closed.
________________________ JUSTICE RAVI CHEEMALAPATI BRS