This order dismisses a civil revision petition maintaining that arrest is not maintainable without establishing sufficient means to pay, upholding the lower court decision.
Civil Revision Petition dismissed; no order as to costs.
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THE HON’BLE SRI JUSTICE A.GOPAL REDDY CIVIL REVISION PETITION No.123 of 2011
ORDER:
This Civil Revision Petition is filed under Section 115 of the Code of Civil Procedure (for short ‘C.P.C’) against the order dated 08.10.2010 passed by the III Additional Senior Civil Judge, Vijayawada, in dismissing E.P.No.108 of 2006 in O.S.No.866 of 2003 filed by the petitioner/decree holder under Order XXI Rule 38 and Section 55 C.P.C. seeking arrest of the respondents/judgment debtors for realisation of decretal amount.
In the affidavit filed in support of the Execution Petition, the petitioner-decree holder, except stating that even though he made repeated requests, the judgment debtors have not paid the decretal amount and that the judgment debtors have sufficient means to pay the decretal amount, but wantonly avoiding payment, no particulars with regard to the means of the judgment debtors and the properties owned by them have been mentioned.
Since primary burden lies upon the decree holder to establish that in spite of having sufficient means, the judgement debtors are avoiding to discharge the decretal amount, they are not entitled to be proceeded by way of arrest. Mere making suggestion in the crossexamination of the judgment debtors will not amount to proof of their having sufficient means. In view of the same, the impugned order passed by the lower Court dismissing the E.P does not suffer from any manifest illegality warranting interference by this Court.
The Civil Revision Petition is accordingly dismissed. There shall be no order as to costs.
_________________ A. GOPAL REDDY, J
Date: 11.02.2011 va
1 issue framed by the court
Whether an execution petition for arrest is maintainable when the decree holder has not established that the judgment debtors have sufficient means to pay and are avoiding payment.
2 provisions across 1 enactments
Petitioner/Decree holder
Respondents/Judgment debtors
A. GOPAL REDDY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
