Andhra HC (Pre-Telangana)
T. Muni Nadham vs Karveti Devika Rani on 21 November, 2006
Equivalent citations: 2007(3)ALD327, 2007(2)ALT554
ORDER C.Y. Somayajulu, J.
1. Respondent obtained a money decree against the revision petitioner and filed an E.P. seeking arrest of the revision petitioner. By the order under revision the executing Court ordered arrest of the revision petitioner. Questioning the same this revision is preferred.
2. The main contention of the learned Counsel for the revision petitioner is that since the order under revision does not state that the revision petitioner, having means to pay the decretal amount, is refusing and neglecting to pay the amount, and placing strong reliance on Aluru Venkata Rao v. Kodali Venkata Sri Krishna , R.V.J. Sastry and Anr. v. Bank of India ALT 1978 (2) 335 (D.B), and Kalidindi Rama Raju v. Vijaya Bank 2002 Suppl. (2) ALD 300 in support of his contention that mere possessing means is not sufficient to order arrest of a judgment debtor, the order under revision is not sustainable because the revision petitioner clearly stated in his evidence that he has to maintain himself, his old aged parents and three children, with a meager salary being drawn by him and so it is easy to see that he has no means to pay the decretal amount. There is no representation on behalf of the respondent though served.
3. In Aluru Venkata Rao case (supra) in spite of the judgment debtor's filing a counter in an E.P. for his arrest, that he has no income and is unable to maintain himself and his family members, the executing Court, after hearing both sides, on the basis of the material available on record, ordered issuance of warrant of arrest to keep the judgment debtor in civil prison. When that order was questioned in revision, the learned Judge held that issuance of warrant of arrest for non-payment of decretal amount without issuing a show cause notice and without holding an enquiry and without giving a finding supported by reasons that the judgment debtor having means to pay the decretal amount, is refusing or neglecting to pay the amount, is not legal and remitted the case to the executing Court with a direction to give opportunity to both sides to adduce their evidence.
4. R.V.J. Sastry case ALT 1978 (2) 335 (D.B) (supra) also arose out of an order in an E.P. for arrest directing arrest of the Judgment debtor without holding an enquiry. The order under appeal in that case reads:
Balance not paid. Adjournment petition dismissed. Judgment Debtors have means to pay as per affidavit. Arrest Judgment Debtors 1, 2 and 4 by 3-8-1976.
The Division Blench, by considering that cryptic order and the word 'prescribed' used in Section 51 CPC read with Section 2(16) CPC, which defines 'prescribed' as 'prescribed by rules', and taking into consideration Rule 37 of Order 21 CPC, observing that the requirement of law as regards means of the Judgment debtor to pay the decretal amount, is not considered by the executing Court, which is obligated to issue warrant of arrest, had failed to apply its mind to the relevant mandatory provisions of law, set aside the order under appeal and directed the executing Court to take on file the petition filed by the D.Hr and dispose it of according to law in the light of the observations made in that order.
5. In Kalidindi Rama Raju case 2002 Suppl. (2) ALD 300 (supra) the executing Court ordered arrest of the judgment debtor on the ground that the retirement benefits received by him are sufficient to discharge the E.P. Questioning that order the judgment debtor preferred a revision. The learned Judge held that passing of cryptic orders, not based on reasons, have to be avoided, and that Courts are expected to be cautious while making an order of arrest in execution of decree, since it involves personal liberty and that proper opportunity has to be given and necessary enquiry has to be made while making an order of arrest, and Courts may also examine whether other modes of recovery are available to the decree holder and if it is necessary to order arrest for recovery of the amount and whether the judgment debtor is willfully and intentionally neglecting to discharge the decree debt, and while making the order of arrest in default of appearance of the judgment debtor, Court has to prima facie satisfy itself on the material placed before it that an order of arrest can be made, and shall also fix the period for which the judgment debtor has to be kept in detention, and set aside the order under revision and remitted the case to the executing Court with a direction to dispose of the matter in accordance with law after giving opportunity to both parties to let in any further evidence if they choose to do so.
6. The facts in all the three above cases are different from the facts in this case. In this case the respondent examined himself as P.W1 and the revision petitioner examined himself as R.W1 and marked his salary certificate as Ex.B1. The evidence of the respondent as P.W1 is that the revision petitioner who is working as attender in Z.P. High School is earning more than Rs. 5,000/- p.m. as salary and is also in possession of movable and immovable properties and that though he has means to discharge the E.P. debt in lumpsum, is intentionally evading to repay the debt and so he may be detained in civil prison. During cross-examination he admitted that the revision petitioner is a physically handicapped person and that he obtained attachment before judgment of house site belonging to the revision petitioner and denied the suggestion that the revision petitioner is not getting salary of Rs. 5,000/- p.m. and is spending his entire salary for educating and maintenance of his children and stated that he is not prepared to receive Rs. 5,000/- p.m.
7. The evidence of the revision petitioner, as R.W1, is that he is a physically handicapped person and his salary is Rs. 4,992/- p.m. and he has to maintain his old parents and children and since he has no other source of income except the salary he cannot discharge the E.P. debt in lumpsum, and produced Ex.B1 salary certificate. During cross-examination he stated that he is working as Record Assistant in the Z.P. High School and that he has a house at Gamandla in Sullurpet whose worth is four lakh rupees and denied the suggestion that he has Ac.4-00 of land at Kotapoluru village and and that his father to whom he is the only son is alive and that the house is in the name of his father and denied the suggestion that his parents are not staying with him and that he is giving false evidence to evade the decree debt.
8. Ex.B1, salary certificate produced by the revision petitioner, shows that his basic pay is Rs. 4,190/- and that his gross salary is Rs. 6,177/- and that deductions therefrom are Rs. 1,185/- and his take home salary is Rs. 4,992/-. Out of the deductions, item No. 1 shows that Rs. 400/600 is deducted towards Provident Fund. The other deductions are Profession Tax Rs. 20/-, General Insurance Rs. 15/- and APGLI Rs. 150/-. The contention of the learned Counsel for the revision petitioner is that in item No. 1 of the deductions, Rs. 400/- is being deducted towards contribution to the Provident Fund, and Rs. 600/- is being deducted towards loan taken by the revision petitioner. I accept the contention of the learned Counsel for the revision petitioner and take that Rs. 400/- is the contribution towards Provident Fund and Rs. 600/- is being deducted towards the loan taken by the revision petitioner from the Provident Fund. Since only statutory deductions can be taken into consideration, the total statutory deductions from the salary of the revision petitioner are Rs. 585/-. So the salary of the revision petitioner, which can be taken into consideration for purpose of Section 60 CPC is Rs. 6,177 minus Rs. 585/- = Rs. 5,592/-. Since the E.P. was filed subsequent to coming into force of the 1999 and 2002 amendments to CPC, first Rs. 1,000/- and 2/3rd of the remainder are exempt from attachment. Since property exempt from attachment cannot be taken into consideration for deciding the means of the judgment debtor, that portion of the salary which is not attachable should not be taken into consideration for considering the means of the revision petitioner. So the attachable salary of the revision petitioner is Rs. 1,531/-.
9. The revision petitioner offered to pay the decretal amount in monthly installments of Rs. 500/- in the E.P. filed within two years from the passing of the decree. The executing Court, on the ground that it has no power to order installments in execution, negatived the request for granting instalments. That finding of the trial Court needs no interference because the executing Court has no power to grant instalments. If revision petitioner really had an intention to discharge the decree debt in instalments, he could have filed a petition under Order 20 Rule 11 CPC seeking installment decree on the original side. But he did not do so.
10. Revision petitioner during his cross-examination admitted that he owns a house worth about Rs. 4,00,000/- and that he also has a house site, which is said to have been attached by the respondent. So that site may not be available to the revision petitioner to raise money. But as revision petitioner himself admitted that he owns a house worth four lakh rupees, he can raise money on that house. The contention of the learned Counsel for the revision petitioner is that revision petitioner in fact denied that he has a house and that the executing Court has wrongly recorded the deposition of the revision petitioner. I am unable to agree with the said contention. If the revision petitioner felt that the executing Court did not correctly recorded his deposition, he should have filed a petition before the executing Court and sought correction of his deposition. When he failed to do so, this Court cannot countenance the plea that there is a mistake in the deposition of the revision petitioner. That apart the contention of the learned Counsel for the revision petitioner that the executing Court did not correctly read the deposition of the revision petitioner cannot be true because his evidence during cross-examination reads: "I am having a house in Gamandla street, Sullurpet. It is not true to suggest that I am having Ac.4-00 of land in Kotapoluru village. My house is worth of Rs. 4,00,000/-. I am only son of my father. My father is alive"
11. Revision petitioner, probably as an after thought, stating that 'his house' is standing in the name of his father is not much of consequence, because admittedly that house is worth Rs. 4,00,000/-. "His house" standing in the name of his father would not make his father the owner of that house. Revision petitioner admitted that he is the only son of his father. So even assuming that half share in the house belongs to his father, the value of the share of the revision petitioner is Rs. 2,00,000/-. So it is clear that the revision petitioner, besides having an attachable salary of rupees more than 1,500/- p.m. also is possessed of a house site, which is under attachment, and half share in a house worth about Rs. 4,00,000/-. The decretal amount, as per the E.P, is Rs. 73,772/- besides costs. So it cannot be said that revision petitioner does have the means to pay the amount covered by the decree.
12. The next question is whether the revision petitioner neglected or refused to pay the decretal amount. If really the revision petitioner had an intention to pay the decree debt nothing prevented him from paying some amount in instalments to the respondent. It is not the case of the revision petitioner that he tried to discharge the decree debt, but he could not raise money on his properties. What are the steps that were taken by him to discharge the debt are also not stated by the revision petitioner in his evidence as R.W1. While admitting the revision petition on 16-11-2004 the learned Judge directed the revision petitioner to deposit Rs. 20,000/- within six weeks from that day as a condition precedent for staying the operation of the order under revision. Revision petitioner seems to have complied with the said order which was passed two years back. Thereafter revision petitioner, admittedly, did not make any payment. So it is clear that revision petitioner would think of paying the amount covered by the decree only when the Court orders him to pay but not otherwise. If revision petitioner, really did not have means to raise any money, he could not have paid Rs. 20,000/- ordered to be deposited vide the order dated 16-11-2004 of the learned Judge who passed the interim order. So it is clear that the revision petitioner, though having sufficient means, is refusing and neglecting to pay the amount covered by the decree.
13. In re the contention of the learned Counsel for the revision petitioner that as there is no specific finding by the executing Court in the order under revision that the revision petitioner is neglecting and refusing to pay the decree amount, the same is not in accordance with Clause (b) to the proviso to Section 51 CPC, I am of the considered opinion that an order for arrest need not necessarily contain the words "neglected" or "refused to pay" the decretal amount. If the order of the executing Court discloses that it applied its mind to the facts of the case and had by implication held that the judgment debtor had neglected or refused to pay the decretal amount, it would be sufficient compliance with the requirement of law. The executing Court in the order under revision observed Though the decree was pertaining to the suit of 1998 and though the Judgment Debtor is a government employee, he did not choose to liquidate so far even in installments and contested the E.P. on untenable grounds.
Therefore, it is clear that the executing Court was of the view that there is gross negligence on the part of the revision petitioner in paying the amount due to the respondent from the revision petitioner in a suit of the year 1998.
14. Therefore, it cannot be said that the executing Court had, without taking into consideration the evidence on record, and without considering whether the revision petitioner refused or neglected to pay the decretal amount, passed the impugned order mechanically. So, the decisions relied on by the learned Counsel for the revision petitioner have no application to the facts of this case.
15. In Jolly George Varghese v. Bank of Cochin referred to in Aluru Venkata Rao case (supra) and Kalidindi Rama Raju case 2002 Suppl. (2) ALD 300 (supra), their Lordships about 20 years back expressed their reservation for the words "has had since the date of decree" used in Proviso (b) to Section 51 CPC reading:
that the Judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree.
After the above decision CPC was amended twice once in 1999 and the other in 2002. Though several provisions in the CPC were amended the Legislature did not think it fit to amend Section 51 CPC. Therefore, it is clear that the legislature did not feel that the power to arrest a judgment debtor in a decree for recovery of money obtained against him is ultra vires the power of the Constitution.
16. Therefore, I find no grounds to interfere with the order under revision and hence the revision petition is dismissed with costs.