Dismissed

Konda Mohan, v. Ghandiyaram Savithramma , Savithri

Telangana HC16 Dec 2011CRP/3606/2011

Case brief

AI extract

What is this about?

This order dismisses a civil revision petition filed by a judgment debtor challenging his arrest in civil prison. The High Court held that the execution petition was not barred by res judicata due to new evidence of the debtor's means and affirmed the lower court's finding that the debtor had funds and assets, justifying the arrest.

What did the court decide?

The Civil Revision Petition is dismissed. No costs awarded.

Konda Mohan, Vs Ghandiyaram Savithramma , Savithri — Execution and Attachment | Telangana HC (2011)

¶1

THE HON'BLE SRI JUSTICE K.G.SHANKAR

¶2

CIVIL REVISION PETITION No.3606 of 2011

¶3

ORDER:

¶4

The judgment debtor in E.P.No.672 of 2010 on the file of the I Additional Junior Civil Judge, Guntur seeks for setting aside the order of his arrest. The suit was laid by the sole decree holder for a sum of Rs.86,000/- together with interest at 6% p.a. The suit was decreed. During the pendency of the suit in O.S.No.414 of 2007, the plaintiff-decree holder sought for the attachment of the immovable properties of the judgment debtor before judgment. I.A.No.386 of 2007 filed under Order 38 Rule 5 CPC was allowed. The properties of the judgment debtor stood attached. However, subsequently I.A.No.386 of 2007 was dismissed holding that the property covered by the petition schedule belonged to the father of the judgment debtor herein. I.A.No.386 of 2007 was ultimately dismissed on 17.01.2008.

¶5

After the decree, the decree holder filed E.P.No.279 of 2009 for the arrest of the sole judgment debtor. The judgment debtor claimed that he did not have means. The Execution Court dismissed E.P.No.279 of 2009 through orders dated 26.02.2010.

¶6

Almost immediately after dismissal of E.P.No.279 of 2009, the present E.P.No.672 of 2010 was laid by the decree holder again seeking arrest of the judgment debtor. Two witnesses were examined on behalf of the decree holder including the decree holder as PW.1. The judgment debtor was examined as RW.1. The decree holder marked six documents on her side. Holding that the judgment debtor has means and has evaded to honour the decree, the learned I Additional Junior

¶7

Civil Judge, Guntur ordered arrest and detention of the judgment debtor in civil prison. Hence this revision.

¶8

Sri P.Gopal Das, learned Counsel for the petitionerjudgment debtor, contended that the judgment debtor did not have means and that the decree holder failed to establish the means of the judgment debtor. He also contended that the orders in E.P.No.279 of 2009 worked as res judicata in the present E.P.No.672 of 2010. He further contended that Section 11 of the Code of Civil Procedure (CPC) applies to execution proceedings as well, that Section 11 CPC does not contemplate its application to suits only and that the real embargo under Section 11 CPC is that the former adjudication should have been on merits as observed by this Court in M.Yadagiri v. G. Venkat Redd y^[1] . He also placed reliance on Abdullah v. Jaikisha n^[2] , which case arose under the provisions of the Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960 (for short ‘Rent Control Act’), where this Court held that Explanation 7 to Section 11 CPC was applicable to rent control proceedings also. He contended that Explanation 7 to Section 11 CPC is more specific that the doctrine of res judicata is applicable to execution proceedings as well and that there cannot, therefore, be any doubt that Section 11 CPC would apply to the present proceedings.

¶9

The question, therefore, is whether E.P.No.672 of 2010 is barred by res judicata.

¶10

Smt B.Anuradha, learned Counsel for the respondentdecree holder, contended that merely because the decree holder laid another execution petition under Order 21 Rules 37, 38 and 40 on an earlier occasion, the present execution petition

¶11

is not barred by Section 11 CPC. She submitted that at the time of the disposal of E.P.No.279 of 2009, the decree holder was not aware about the correct means of the judgment debtor and, more particularly, Ex.A.6 encumbrance certificate. It is her case that the judgment debtor has means and he, therefore, deserves to be arrested since he has been evading to honour the decree.

¶12

In E.P.No.279 of 2009, an encumbrance certificate was produced by the decree holder which was marked as Ex.A.3. However, the encumbrance certificate under Ex.A.3 in E.P.No.279 of 2009 was dated 26.11.2009 whereas Ex.A.6, encumbrance certificate, in E.P.No.672 of 2010 was dated 06.11.2010. These two encumbrance certificates are not one and the same. Where it is the contention of the decree holder on new facts that the judgment debtor has means and failed to discharge the same, a fresh execution petition is certainly not barred by res judicata. I, therefore, agree with the contention of the learned Counsel for the decree holder that the present execution petition is not barred by res judicata although I agree with the contention of the learned Counsel for the judgment debtor that the principles of res judicata indeed apply to execution proceedings.

¶13

Regarding the merits of the case, it is the contention of the learned Counsel for the decree holder that the judgment debtor was one of the five heirs of his father and that the property owned by his father was sold at Rs.6,03,000/-. The judgment debtor contended that the property was sold at Rs.5,00,000/-. The encumbrance certificate under Ex.A.6 discloses that the market value of the property itself was Rs.6,02,200/-. The judgment debtor by name Konda Murali Mohan was described as one of the owners of the property

¶14

covered by encumbrance certificate. Thus the judgment debtor has a share in the immovable property covered by Ex.A.6, encumbrance certificate. He has atleast 1/5^th share.

¶15

Learned Counsel for the decree holder inter alia contended that the judgment debtor sold the property at Rs.12,00,000/- and that the share of the judgment debtor was more than Rs.2,00,000/-. However, the judgment debtor contended that the property of 42 sq. yards possessed by his father was sold away by his aged mother to perform the marriage of his sister and that the property was sold at a cost of Rs.5,00,000/-. Neither the decree holder nor the judgment debtor produced the sale deed or the registration extract of the same. They have also not examined the vendee or some other person to prove the rate at which the property was sold. PW.2 is a tailor. He claimed that the judgment debtor sold the property at Rs.12,00,000/-. However, PW.2 was not a party to the sale deed. There is no evidence to establish that the judgment debtor sold the encumbered property at Rs.12,00,000/-. In the absence of concrete evidence from either side, I have no alternative but to accept the claim of the judgment debtor that the property was sold at Rs.5,00,000/-.

¶16

It is pertinent to recall that the judgment debtor contended that the property was sold to raise the funds to perform the marriage of his sister. It, however, is not his case that the marriage of his sister was performed and that the judgment debtor did not possess any part of the sale proceeds. I have no hesitation to hold that the judgment debtor has more than Rs.1,00,000/- towards his share from the sale of the property possessed by his father.

¶17

The judgment debtor admittedly was working as a medical representative. He possesses a motorcycle. I am afraid that it is preposterous for such a judgment debtor to contend that he does not have means to honour the decretal amount. The judgment debtor who is an employed person and who maintains a motorcycle and possesses money from the sale of the immovable property certainly shall be considered to be in possession of sufficient funds to honour the decree.

¶18

I n Pandugayala Subbarayadu v. Kattamuri Sree Krishn a^[3] , it was held that the Execution Court should enquire whether the property of the judgment debtor is exempt from attachment, and whether the property is income yielding asset to assess whether the judgment debtor has sufficient means to pay the decretal amount. In the present case, the Trial Court indeed considered the means of the judgment debtor not only with reference to the evidence of PWs.1 and 2, but also with reference to the evidence of the judgment debtor as RW.1 and the exhibits and concluded that the judgment debtor has means to discharge the decretal amount. In Jolly George Varghese v.

¶19

Bank of Cochi n^[4] , the Supreme Court held that mala fides on the part of the judgment debtor in failing to honour the decree must indeed be made out before ordering the arrest and detention of the judgment debtor in the civil prison.

¶20

Now, the question is whether the arrest of the judgment debtor as ordered by the Execution Court is justified or otherwise.

¶21

In the present case, the judgment debtor admitted that the immovable property in which he has a share had been sold by his mother. He further admitted that he has been working as a

¶22

medical representative and has been maintaining a motorcycle albeit he claims that his salary is Rs.4,000/- per month. Where the judgment debtor is a salaried employee, and had recently sold immovable property, he cannot be heard to say that he does not have means to honour the decree. I consider that the Execution Court was perfectly justified in holding that the judgment debtor has means to honour the decree, and has failed to do so. Consequently, there is no error in the order under revision.

¶23

The Civil Revision Petition is devoid of merits and is accordingly dismissed. No costs.

¶24

K.G.SHANKAR,J

¶25

Dt:16.12.2011 Usd

¶26

[1] 2007(1) ALD 101 [2] 1994 (3) ALT 66 [3] 2008(4) ALD 454 [4] AIR 1980 SC 470

Konda Mohan, v. Ghandiyaram Savithramma , Savithri

Case brief

What is this about?

What did the court decide?

Konda Mohan, v. Ghandiyaram Savithramma , Savithri

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Ms. Vegiraju Yamani Nagalakshmi, Vs The State of A.P.

Vankayalapati Srinivas (A1) Vs Gundavarapu Prajapathi Rao

D. Rajeswari, Vs D.N.Balakrishna Naidu

Gadi Venkata Subba Reddy, Vs Mudam Sattar Saheb, (Died).

Cherukuru Munaiah Vs Ch. Sankaraiah

Vinukonda Venkata Narasimhacharyulu, Vs Vinukonda Nirmala