Andhra HC (Pre-Telangana)
Buddana Nageswara Rao vs Yendeevi Sri Anjaneyulu on 14 September, 2001
Equivalent citations: 2002(2)ALT56, 2001 A I H C 4905, (2002) 2 ANDH LT 56
ORDER P.S. Narayana, J.
1. The Civil Revision Petition is filed by 2nd Judgment-debtor in E.P. No. 26/97 in O.S. No. 67/97 on the file of Senior Civil Judge, Machilipatnam.
2. The respondent-Decree-holder filed E.P. No. 26/97 in O.S. No. 67/97 on the file of Senior Civil Judge, Machilipatnam against two Judgment-debtors, the father and the son, seeking their arrest for realization of the decretal amount. On behalf of the Decree-holder, P.W.1 was examined and on behalf of the Judgment-debtors, they had examined themselves as R.Ws.1 and 2 and Exs.B-1 and B-2 were marked. The Court below had arrived at the conclusion that the Decree-holder is not entitled to seek the arrest of Judgment-debtor No. 1 i. e, the father, but had ordered the arrest and detention of Judgment-debtor No. 2 only and Judgment-debtor No. 2, aggrieved by the said order had filed the present Civil Revision Petition.
3. Sri Ram Gopal, learned Counsel appearing for the Revision Petitioner had made elaborate submissions and had contended that the evidence available as against Judgment-debtors 1 and 2 is one and the same and the Court below had totally erred in ordering the arrest of Judgment-debtor No. 2 having arrived at the conclusion that the arrest of Judgment-debtor No. 1 cannot be ordered. The learned Counsel also had submitted that Ex.B-1 is sale deed dated 23-7-1990 which shows Ac. 1.00 of land in the name of the wife of Judgment-debtor No. 2 and Ex.B-2 is a certificate issued by S.B.I, showing that he stood as guarantor. The learned Counsel also had pointed out paragraph-11 of the order of the Court below wherein it was recorded that the evidence is sufficient to conclude that the Judgment-debtor No. 1 has properties and means to pay the decretal amount or part thereof. The learned Counsel also had contended when that is the finding relating to the means of the Judgment-debtor No. 1, it cannot be said that the Judgment-debtor No. 2 is having means. The learned Counsel also had contended that the mere fact that Ex.B-1 was marked on behalf of Judgment-debtor No. 2 does not alter the situation in any way while deciding whether the Judgment-debtor No. 2 is having means to pay the decretal amount or not. The learned Counsel had made elaborate submissions on the meaning of the word "means" and the burden of proof relating to "means" and what are the essentials to be proved by the Decreeholder for getting the relief of arrest and detention for realization of the amount in a money decree. The learned Counsel also had placed reliance on the following decisions:
Aluru Venkata Rao v. Kodali Venkata Sai Krishna Jaganmohana Rao, , T. Doraswamy Reddy v. K. Kodanda Naidu, 1997 (3) An.W.R. 47 = 1997 (2) ALD 190, Saratchandra, Padhyannadange v. Gudiya Eswara Rao , C.A. Sattar v. L.C, Ayub , Sikile Moses v. Koturi Seeta Ram Das , Jawaharlal Daima and Co. v. Chinta Chittemma and Anr. 1989 (1) ALT 335, Pasumorti Durga Srinivas Murthy v. Sri Sai Agencies and Ors., 1998 (2) An.W.R. 284 = 1997 (6) ALD 306
4. Sri Rama Krishna, the learned Counsel representing Sri Prabhakar Rao had contended that at paragraph-13 of the order of the Court below, a clear finding had been recorded that Judgment-debtor No. 2 is having means to pay the decretal amount or part thereof and hence the Court below is justified in ordering the arrest of the Judgment-debtor No. 2.
5. Heard both the Counsel and also perused the material available on record. In the decision referred (6) supra, it was held that if the wife has her own property the presumption is that she acts on her own and by implied authority the wife acts as agent of the husband making the latter liable for expenditure incurred by her in respect of necessaries of life and there cannot be any such implied authority in case where the wife owns separate properties and marriage will not make the husband an agent of the wife to deal with her property matters without her authority. In the decision (6) referred above, it Was held that the husband has no authority to act on behalf of his wife in respect of acts which are outside the ordinary course of business. In the decision cited (5) supra, it was held that an order of arresting Judgment-debtor without giving reasons under Section 51 C.P.C. and without conducting enquiry under Order 21 Rule 40 C.P.C. is not legal. Placing strong reliance on these decisions, the learned Counsel for the Revision Petitioner had contended that merely because Ex.B-1 is the sale deed showing some property in the name of the wife of Judgment-debtor No. 2, it cannot be said that the Judgment-debtor No. 2 is having means to pay the decree debt. In the decision 1st cited supra, while dealing with the meaning of the word "means" it was observed:
"The dictionary meaning of "means" as a money resource or wealth of an individual (page 735 right column of the Concise Oxford Dictionary New Edn. Reprinted 1992) is too general expression and the word "means" occurring in Section 51 of C.P.C. can only means realizable assets viz., sufficient assets from out of which the necessary monies can be realized to pay up the decree amount. Therefore, the mere occupation of the Judgment-debtor and its potential expected income is not decisive of the means to pay. The pertinence of the intent may not be lost if the expression of the means to pay can be a synonym to capacity to pay."
In the decision 2nd cited above, it was held that where except the oral statement no other material was placed before the Court to establish prima facie that the Judgment-debtor was avoiding to pay decretal amount in spite of having means to pay, ordering arrest of the Judgment-debtor by placing burden on him is illegal. In the decision cited (3) supra, it was held that the Court should be satisfied that the Judgment-debtor is having sufficient means and refused or neglected to pay the decree amount or some substantial part thereof. In V. Srinivasulu v. B. Narasimha Murthy, it was held that the finding of the executing Court that the Judgment-debtor is entitled to a share in the land of his mother and therefore he has sufficient means to satisfy the decree is unsustainable. In C.A. Sattar v. L.C. Ayub, it was held that no person can be arrested and sent to jail for realization of money without giving opportunity to him and without conducting enquiry as to his means.
6. Now coming to the facts of the case, except the evidence of P.W.1 there is no other evidence let in on behalf of the respondent-Decreeholder. The evidence of P.W.1 is that both the Judgment-debtors, the son and the father, are doing prawn culture business and they are getting income running into lakhs and they have got lands and houses at Neelipudi and other villages and he had enquired about the financial capacity of the Judgment-debtors before lending the amount and they have capacity to pay the decretal amount in lumpsum. Except this oral testimony of P.W.1 there is no other supporting material placed by the respondent-Decreeholder to prove the means of Judgment-debtors. However, the Court below had arrived at the conclusion that the arrest of the Judgment-debtor No. 1, the father, cannot be ordered since the Decreeholder failed to establish the means of Judgment-debtor No. 1. In fact, the finding of the Court below equally applies even in the case of Judgment-debtor No. 2, the present Revision Petitioner, since except Exs.B-1 and B-2 there is no other material available on record to establish the means of the Judgment-debtor No. 2. It is pertinent to note that the mere fact that there is some land in the name of the wife cannot be taken as proof of the means of Judgment-debtor No. 2. It is always essential and desirable that the Decreehoider should be able to establish the means of the Judgment-debtor. When both the Judgment-debtors stand on the same footing, the Court below had erred in ordering the arrest of Judgment-debtor No. 2 only having recorded a finding that the Judgment-debtor No. 1 has no means to discharge the decretal amount. Exs.B-1 and B-2 as such will not come in aid of the Decreehoider in positively establishing the means of the Judgment-debtor No. 2. It is needless to mention that the burden is on the Decreehoider to discharge by satisfying the Court about the means of the Judgment-debtors and the neglect of the Judgment-debtors in discharging the decretal amount. In Kalidindi Rama Raju v. Vijaya Bank, 2001 (2) An.W.R. 184 = 2001 (2) DT 289 I had an occasion to deal with the principles to be borne in mind while ordering arrest and detention of a judgment-debtor and the following principles had been laid down by me:
(1) Passing cryptic orders not based on reasons have to be avoided.
(2) Courts are expected to be cautious while making order of arrest in execution of decree since it involves personal liberty.
(3) Proper opportunity has to be given and necessary enquiry has to be made while making an order of arrest.
(4) Courts may also examine whether other modes of recovery are available to the decreeholder and is it necessary to order arrest for recovery of the amount and whether Judgment-debtors are willfully and intentionally neglecting to discharge the decree debts and Courts my examine the relevant circumstances also in this regard.
(5) Even while making an order of arrest in default of appearance of the Judgment-debtors Courts have to prima facie satisfy themselves on the material placed before them that an order of arrest can be made.
(6) Courts shall also fix the period for which the Judgment-debtors are to be kept in detention.
After going through the order of the Court below I am satisfied that the Decreehoider had not placed sufficient material to prove the means of the Judgment-debtors and the Court below had arrived at correct conclusion as far as the Judgment-debtor No. 1 is concerned and the said finding relating to the means may have to be applied even in the case of Judgment-debtor No. 2 also, the son, since as already discussed supra, Exs.B-1 and B-2 do not in any way come in the aid of the Decree-holder in discharging the burden of proof which the Decreehoider is expected to do while seeking the arrest and detention Judgment-debtors in execution of a money decree. Since the evidence on record available is not sufficient, in the interests of justice, the matter has to be remitted back to the Court below for affording opportunity to both the parties for letting in further evidence, if any on the aspect of the means of the Judgment-debtors.
7. For the reasons stated supra, the impugned order in E.P. No. 26/97 in O.S. No. 67/97 dated 27-10-1998, so far as it relates to the Revision Petitioner-judgment-debtor No. 2 is concerned, is hereby set aside and the matter is remitted back to the Court below to give opportunity to all the parties, for letting in further evidence, if any for the purpose of substantiating their respective contentions. The Civil Revision Petition is allowed to the extent indicated above and in the facts and circumstances of the case, there shall be no order as to costs.