Andhra HC (Pre-Telangana)
Pothuneedi Laxmana Rao vs Kadasu Muneswara Rao on 13 June, 2005
Equivalent citations: 2005(4)ALD833, 2005(4)ALT444
ORDER A. Gopal Reddy, J.
1. Judgment debtor in O.S. No. 134 of 2003 filed this revision assailing the correctness of the order passed by the Principal Junior Civil Judge, Narsapur in ordering E.P. No. 28 of 2004 dated 2-11-2004 for arrest of the judgment debtor and to detain him in civil prison for due execution of the decree obtained by the decree holder in the said suit.
2. Heard the learned counsel for the petitioner and also learned counsel for the respondent.
3. Decree holder who obtained decree for a sum of Rs. 40,000/- filed the above E.P. for sending judgment debtor to a civil prison as he is evading payment of the decretal amount intentionally though having sufficient means; that he is having one acre of wet land at Aagarru village the cost of which is Rs. 4,00,000f- and it fetches income of Rs. 30,000/- per annum apart from the same he is also owning 0.40 cts. of dry land at Seetharamapuram village value of the same will be Rs. 40,000/- and judgment debtor is also doing business and earning Rs. 10,000/- per month but evading to satisfy the decretal amount. On respondent denying the same evidence was let in by either parties. Petitioner himself was examined as P.W. 1 and marked Ex. A-1 -encumbrance certificate issued by the Sub-Registrar, Palkol. Respondent himself was examined as R.W. 1.
4. Ex. A-1 -encumbrance certificate shows that the judgment debtor owns one acre of land, which was mortgaged to Primary Agricultural Cooperative Society, Aagarru Village, but the decree holder did not produce any documentary evidence that the judgment debtor is having house property and 0.40 cts. of dry land. Judgment debtor having admitted that he is having one acre of land and mortgaged the same got filed counter without any fairness saying that he is working as cooli. Hence, he is not entitled to take protection as held by this Court in K. Vijaykumar v. N. Gururaja Raoy, and in Y. Saratchandra v. Lakshminarasimha Finances, and accordingly he is liable for arrest and detention for determination of decretal amount.
5. Learned counsel for the petitioner/ judgment debtor contends that when the decree holder himself admitted that an extent of 83 square yards in Rayapeta bearing assessment 5224 with renumbered D. No. 9-5-70 was attached and cost of which is Rs. 1,00,000/-, it is open for the decree holder to proceed to recover the amount by sale of the same. If another mode is available for realization of decretal amount, sending judgment debtor to civil prison is not at all warranted. The lower Court committed an error in ordering E.P. for arrest of judgment debtor and sends him to civil prison.
6. Whereas the learned counsel for the respondent/decree holder submits that in spite of interim direction for deposit of 1/4th decretal amount, judgment debtor has not deposited the same. In view of the same, lower Court rightly ordered E.P., which do not require any interference.
7. When the decree holder himself admitted that the property attached will satisfy the decretal amount, the lower Court without taking any recourse for sale of the same, ordering for arrest of judgment debtor and detain him in civil prison is not at all warranted. Merely possessing one acre of land cannot be presumed that judgment debtor will get an income of Rs. 30,000/- per month as pleaded by the respondent/decree holder. In view of drought conditions prevailing in the State, the submission made by the learned counsel for the petitioner that the judgment debtor is working as cooli, since he is not getting any income from the land, has to be accepted. When other modes are available in execution of decree, ordering for arrest and detention is not at all justified. Accordingly, impugned order passed by the lower Court ordering arrest of judgment debtor and detain him in civil prison is set aside. It is open for the lower Court to proceed with the sale of the attached property.
8. Civil Revision Petition is accordingly allowed. No costs.