Dismissed

Bontalakoti Trinadha rao v. Revalla Chinnayya

Telangana HC26 Mar 2010CRP/5717/2009

Case brief

AI extract

What is this about?

In a civil revision petition challenging an execution order allowing a warrant of arrest, the High Court held that a decree-holder is entitled to choose execution modes. If the judgment-debtor has sufficient means yet evades payment, the decree-holder can maintain an execution petition for arrest without having to exhaust remedies against the debtor's property first. The revision petition was dism

What did the court decide?

The civil revision petition was dismissed. No order as to costs.

Bontalakoti Trinadha rao Vs Revalla Chinnayya — Execution and Attachment | Telangana HC (2010)

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THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY

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CIVIL REVISION PETITION No.5717 OF 2009

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DATED: 26-03-2010

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Between: Bontalakoti Trinadha Rao.

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..... PETITIONER.

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And

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Revalla Chinnayya.

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.....RESPONDENT

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ORDER:

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This Civil Revision Petition is directed against the order, dated 27-10-2009, in E.P.No.168 of 2004 in O.S.No.139 of 2003 on the file of the Principal Junior Civil Judge, Bobbili, wherein the Execution Petition was allowed and warrant of arrest was ordered to be issued against the petitioner-judgment-debtor.

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2. Heard learned counsel appearing for the petitionerjudgment-debtor. None appeared for the respondentdecree-holder though served with notice. Perused the record.

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3. It is not disputed that the respondent herein filed a suit against the petitioner in O.S.No.139 of 2003 for recovery of certain amount due and the suit was decreed. In execution of the decree, the respondent-decree-holder filed E.P.No.168 of 2004 for recovery of a sum of Rs.43,957/- due under the decree by seeking arrest of the petitioner-judgment-debtor.

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4. According to the decree-holder, petitioner is owning a house worth Rs.3,00,000/- and is also running a tea stall near telephone exchange and earning Rs.300/- per day. The judgment-debtor admits that he owns a house and that he is also running a tea stall near the telephone exchange but he contends that the house is worth only

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Rs.60,000/- and he is in personal occupation of the same and the house does not fetch any income by way of rents. He would further contend that his income on the tea stall is only Rs.60/- per day but not Rs.300/- per day, as alleged by the decree-holder.

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5. During enquiry, the decree-holder was examined as P.W.1 and the judgment-debtor examined himself as R.W.1 and examined three other witnesses-R.Ws.2 to 4. No documentary evidence was adduced by either side.

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6. All the witnesses examined on behalf of the judgment-debtor deposed that the judgment-debtor owns a house and is also running a tea stall near telephone exchange. R.W.1 himself admitted that his tea stall is located in a busy locality and it is open from 5.00 a.m. to 5.00 p.m. Either of the parties did not produce any documentary evidence in support of their respective contentions regarding the income of the judgment-debtor from the tea stall. Even assuming for a moment that the judgment-debtor is earning Rs.100/- per day from the tea stall as net income, in view of the fact that it is located in a very busy locality near telephone exchange in the town, it cannot be said that the judgment-debtor has no means at all to discharge the debt. Added to that, the judgmentdebtor is admittedly owning a house property.

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7. Learned counsel for the petitioner would submit that the decree-holder can as well proceed against the house property for realization of the decree debt. It is well settled that the decree-holder is entitled to choose any of the modes of execution permissible under law for realization of the decree debt.

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8. When once the decree-holder is able to establish that the judgment-debtor is having sufficient means but is still evading to pay the decree debt, the judgment-debtor cannot contend that the decree-holder shall proceed only against the property at the first instance and after exhausting his remedies against his property alone, the Execution Petition seeking arrest is maintainable. The contention of the learned counsel for the petitionerjudgment-debtor is therefore untenable. The decreeholder is entitled to maintain the Execution Petition for arrest of the judgment-debtor in execution of the decree. The impugned order does not suffer from any illegality or irregularity so as to warrant interference by this Court in exercise of the revisional jurisdiction.

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9. In the result, Civil Revision Petition is dismissed. There shall be no order as to costs.

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_______________________ G.V.SEETHAPATHY, J

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26^th March, 2010. Tsy

Bontalakoti Trinadha rao v. Revalla Chinnayya

Case brief

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Bontalakoti Trinadha rao v. Revalla Chinnayya

Case brief

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