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1 - 5 of 5 (0.18 seconds)The Code of Civil Procedure, 1908
Jolly George Verghese & Anr vs The Bank Of Cochin on 4 February, 1980
So he cannot be equated to the judgment-debtor in the case before the apex Court i.e. Jolly George Varghese's case (supra).
Bishwanath Prasad And Others vs Dwarka Prasad (Dead) And Others on 30 October, 1973
In any event since Ex.X.1 relates to the assessment year 2001-02 corresponding to the accounting year 2000-01, shows that the income of the respondent during that year was more than Rs. 70,000/- it is a substantive evidence and can be used against him in view of the ratio in Biswanath Prasad v. Dwarka Prasad AIR 1974 SC 117. Since the Execution Petition is filed for recovery of Rs. 30,190/-, it is easy to see that respondent, though having the means to pay the decretal amount, either neglected or refused to pay the same to the revision petitioner. So the contention that respondent had no 'present means to pay' the decretal amount on the date of execution petition cannot be accepted.
Pothuneedi Laxmana Rao vs Kadasu Muneswara Rao on 13 June, 2005
12. The facts in Pothuneedi Laxmana Rao's case (supra), relied on by the learned Counsel for the respondent also are different from the facts of this case. In that case the decree holder who obtained a decree for Rs. 40,000/- filed an E.P. for arrest of the judgment-debtor on the ground that he has one acre of wet land and a site and is doing business. Ex.A.1, Encumbrance Certificate produced by the decree holder showed that one acre land was mortgaged to Primary Agricultural Co-operative Society. He failed to produce evidence to show that the judgment-debtor has a site. The decree holder admitted that he got attached the house of the judgment-debtor worth about one lakh, and admitted that the property attached would satisfy the decree. The executing Court ordered arrest of the judgment-debtor on the ground that he took a false plea that he is a cooli. That order was reversed in the revision on the ground that one acre of land, which is also under mortgage, could not fetch an income of Rs. 30,000/- p.m., as contended by the decree holder. In the facts and circumstances of the case, the learned Judge held that when the decree holder is availing the other modes of execution, and as the judgment-debtor is not deriving income from the land due to drought and is working as a cooli, he cannot be arrested. The learned Judge did not lay down as a matter of law that in all cases where other modes of execution are available, a judgment-debtor cannot be arrested. That observation was made in the facts and circumstances of that case. In fact the decree holder has right to proceed both against the person and property of a judgment-debtor in execution of the money decree obtained by him. Rule 21 of Order 21 CPC confers a power on the Court to refuse simultaneous execution at its discretion. So it is clear that it is for the decree holder to choose whether to proceed against the property or person of a judgment-debtor. While proceeding against the person of the judgment-debtor, if the decree holder is able to establish the necessary ingredient for his arrest, the Court cannot refuse arrest of the judgment-debtor on the ground that the decree holder has a right to proceed against his properties.
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