Dismissed

Kakarla Gangaraju v. Tenneru Bala Muralikrishna

Andhra Pradesh HC18 Mar 2021CRP/222/2020

Case brief

AI extract

What is this about?

The High Court dismissed a civil revision petition challenging an order for execution by arrest. The court held the executing court was correct as evidence established the judgment debtor had property and intentionally avoided payment, directing the debtor to pay forthwith.

What did the court decide?

Civil Revision Petition dismissed; judgment debtor directed to pay the E.P. amount within four weeks.

Kakarla Gangaraju Vs Tenneru Bala… — Execution and Attachment | Andhra Pradesh HC (2021)

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO CIVIL REVISION PETITION No.222 of 2020

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ORDER :

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The challenge in this writ petition is to the order dated 28.11.2019 in E.P.No.36 of 2015 in O.S.No.419 of 2012 passed by the learned Senior Civil Judge, Tadepalligudem, West Godavari District ordering arrest of the judgment debtor for recovery of the decree debt.

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Heard learned counsel for the petitioner Sri S. Subba Reddy and learned counsel for the respondent Sri K. S. Murthy.

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It is vehemently contended on behalf of the petitioner/judgment debtor that the respondent decree holder failed to prove the case of the judgment debtor and his intentional failure to discharge the decree debt. It is also contended if really the judgment debtor possessed immovable properties as contended by the decree holder, he ought to have proceeded against those properties for realization of the decree amount. Thus, it is clear that the judgment debtor is not having any properties and therefore, the question, his intentional avoiding to pay the decree amount does not arise. He relied upon the judgment in Korada Narayana Rao Vs. Kudara Mutyalu¹ to contend that the executing court shall not order arrest of judgment debtor to commit him to civil prison unless there is a cogent and convincing evidence regarding his means and his willful failure to pay the decree amount.

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1 MANU/HY/0634/2018

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UDPR,J CRP No.222 of 2020

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For contra, the learned counsel for the respondent/decree holder argued that the executing court allowed the E.P only after having been satisfied that the judgment debtor possessed sufficient immovable property and he deliberately avoided to pay the decree amount. I gave my anxious consideration to the impugned order. The decree was passed for an amount of Rs.4,71,800/- and subsequent interest @ 6% per annum from the date of suit till the date of realization on the principal amount. The judgment debtor did not pay any amount after passing of the decree. During the enquiry, in order to prove the means of the judgment debtor, decree holder filed Ex.A1, whereas the judgment debtor produced Ex.B1 to B9. As per decree holder, the judgment debtor owns an extent of Ac.1-00 cents in R.S.No.224/1 of Cheeperugudem Village and an extent of Ac.3-54 cents in R.S.No.286 of Nallajarla village which he got under partition deed dated 19.04.2010 and he was getting income of Rs.2,00,000/- per annum on the land. The judgment debtor denied having aforesaid properties and contended that he was getting his livelihood by doing agricultural coolie works.

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In the light of above contentions, the executing Court verified the oral and documentary evidence and observed that under Ex.A1 partition deed dated 19.04.2010, the judgment debtor, his son and daughter partitioned the property and judgment debtor got an extent of Ac.3-54 cents in R.S.No.286 of Nallajarla Village and an extent of Ac.1-00 cents in R.S.No.224/1 of Cheepurugudem village towards his

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UDPR,J CRP No.222 of 2020

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share. The court further observed that the judgment debtor, during the cross-examination admitted the said fact.

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a) Then, perusing the documents filed by the judgment debtor, the executing court observed that as per Ex.B7 sale deed dated 01.07.2010, the judgment debtor sold an extent of Ac.3-54 cents of land in R.S.No.286 of Nallajarla village to one Yerra Krishnaveni in the year 2010 much prior to the passing of the decree.

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b) Then referring to Ex.B3 and B4, the Court observed that as per those documents, the land an extent of Ac.1-00 cents in R.S.No.224/4A belongs to one Jalaparthi Satyanarayana but those documents do not relate to the lands mentioned in Ex.A1 partition deed because as per Ex.A1 partition deed the judgment debtor got Ac.1-00 cents of land in R.S.No.224/4, but not in R.S.No.224/4A.

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c) Then referring to Ex.B2 certificate issued by Village Revenue Officer stating that the judgment debtor is not having landed property in R.S.No.224/4, the court observed that the Village Revenue Officer is not competent to issue such certificate.

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d) Then referring to Ex.B8 parittion deed dated 28.03.2013, it observed that under the said deed, the judgment debtor and his father partitioned the properties and judgment debtor got Ac.5-45 cents of land in Cheepurugudem village and Rs.50,000/- cash towards his share and later under Ex.B9 partition deed dated 30.03.2013, the judgment debtor allotted the landed property that was allotted to his

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share under Ex.B8, in favour of his children. After making above observation with reference to the documents on either side, the executing court ultimately held that when the entire evidence is taken into consideration, the judgment debtor still having Ac.1-00 cents of land in R.S.No.224/4 which he got in the partition under Ex.A1 partition deed. The Court further observed, the judgment debtor has a share in the house bearing No.1-1/1 which is a joint family house. Though he claimed to have relinquished his share in the house to his father and his father registered the same in favour of his grandson, however he did not produce any documents and therefore it cannot be said that the judgment debtor was not having any share in the house property.

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Thus, the executing court held that the judgment debtor is having an extent Ac.1-00 cents of land in R.S.No.224/4 and a share in the house property and he is having capacity to pay the decree amount, but intentionally avoided.

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On a careful scrutiny of the impugned order, I find no reason to come to a different conclusion. It is true that the execution of a decree by way of committing the judgment debtor to civil prison is a harsh relief, which curtails his liberty. Therefore, the court should satisfy that the judgment debtor possessed sufficient means and deliberately avoided to pay the decretal debt before passing an order of detention in civil prison. In my considered view, in the instant case, that burden was sufficiently discharged by the decree holder. Therefore, the

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UDPR,J CRP No.222 of 2020

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executing court is right in allowing the E.P and passing the order. The decision in Korada Narayana Rao Vs. Kudara Mutyalu case relied upon by the petitioner does not improve his case because in that case the decree holder did not file any documents to show that the judgment debtor possessed sufficient means. However, that is not the case here. Having regard to the submission made by the petitioner before parting, this court is of the view that a final opportunity should be given to judgment debtor to discharge the decretal amount. Accordingly, while dismissing the Civil Revision Petition, the judgment debtor is directed to pay the E.P amount within four weeks from the date of this order, failing which, the executing court can issue arrest warrant against him and proceed further in the matter.

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As a sequel, interlocutory applications, if any pending, shall stand closed.

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U. DURGA PRASAD RAO, J

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18^th March, 2021 krk

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UDPR,J CRP No.222 of 2020

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HON'BLE SRI JUSTICE U. DURGA PRASAD RAO

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CIVIL REVISION PETITION No.222 of 2020

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18^th March, 2021

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krk

Kakarla Gangaraju v. Tenneru Bala Muralikrishna

Case brief

What is this about?

What did the court decide?

Kakarla Gangaraju v. Tenneru Bala Muralikrishna

Case brief

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What did the court decide?

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