Dismissed

Nandikolla Dhanaraju v. Sri Jana Jyothi Housing India Pvt. Ltd.

Telangana HC18 Jan 2012CRP/4393/2011

Case brief

AI extract

What is this about?

The High Court disposed of a Civil Revision Petition challenging an order allowing the arrest and detention of a judgment debtor for costs. The Court found no jurisdictional error as the debtor failed to deny having means or appear to testify regarding lack of funds.

What did the court decide?

The Civil Revision Petition is dismissed and the interim relief application (CMP.No.6240 of 2011) is disposed of as infructuous.

Nandikolla Dhanaraju Vs Sri Jana Jyothi Housing… — Execution and Attachment | Telangana HC (2012)

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The Hon'ble Sri Justice C.V.Nagarjuna Reddy

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Civil Revision Petition No.4393 of 2011

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Date: 18-01-2012

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Between:

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Nandikolla Dhana Raju

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…Petitioner

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And Jana Jyothi Housing India (P) Ltd., Rep. by its Managing Partner, Merla Surya Prabhakar

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…Respondent Counsel for the petitioner: Mr.S.Subba Reddy Counsel for the respondent: Mr.M.R.S.Srinivas

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The Court made the following:

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The Hon'ble Sri Justice C.V.Nagarjuna Reddy

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Civil Revision Petition No.4393 of 2011

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Date: 18-01-2012

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Order:

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This Civil Revision Petition arises out of Order, dated 16-08-2011, in E.P.No.104 of 2010 in O.S.No.313 of 2006 on the file of the learned II Additional Senior Civil Judge, Kakinada.

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The judgment debtor in the above-noted suit is the

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petitioner. The petitioner filed OS.No.313 of 2006 for specific performance of an agreement of sale against the respondent- Company. The said suit was dismissed with costs. Questioning the said judgment and decree to the extent of dismissal of the suit, the petitioner filed AS.No.794 of 2011, which is stated to be pending before this Court. However, the decree to the extent of costs is not the subject matter of the appeal. The respondent filed E.P.No.104 of 2010 seeking execution of the decree to the extent of recovery of costs by arresting and detaining the petitioner in civil prison. The Court below has allowed the said EP ordering the petitioner’s arrest and detention in civil prison. Feeling aggrieved by the said order, the petitioner filed the present Civil Revision Petition.

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Sri S.Subba Reddy, learned Counsel for the petitioner, strenuously contended that the Court below has committed a jurisdictional error in allowing the EP. He submitted that, even though the burden is placed on the respondent to show that the petitioner has been evading payment of the decretal amount, despite having sufficient means, it has failed to discharge the said burden and that therefore, the Court below ought not to have ordered the petitioner’s arrest.

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Sri M.R.Srinivas, learned Counsel for the respondent, opposed the above contention of the learned Counsel for the petitioner and submitted that the petitioner failed to deny the plea of the respondent that he has sufficient means to

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pay and that he has also avoided to enter the witness box and depose on his lack of means.

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I have carefully considered the submissions of the learned Counsel for the parties with reference to the impugned Order passed by the Court below.

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Section 51 of the Code of Civil Procedure, 1908, empowers the Court to enforce execution of a decree either by delivery of property, attachment and sale or sale without attachment of the property, arrest and detention in prison for the period not exceeding the period specified in Section 58, by appointing a receiver or in such other manner as the nature of the relief granted may require.

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The sine qua non for ordering detention of a person in prison is that the judgment debtor has or had, since the date of the decree, the means to pay the entire decrertal amount or substantial part thereof and refuses or neglects or has refused to or neglected to pay the same. In his chiefaffidavit, the Branch Manager of the respondent- Company specifically stated that the petitioner has valuable house sites to the tune of Rs.5 lakhs and means to pay the decretal costs and that he has been intentionally avoiding payment of the same. The petitioner filed a counter-affidavit wherein he has not taken the plea of not having any means to pay. The petitioner also, except suggesting to PW.1 that he has no means to pay, has not entered the witness box to depose on his lack of means. The Court below has, therefore, taken these cumulative circumstances into

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account, for drawing an inference that the petitioner has means to pay, even though the respondent failed to produce any evidence in support of its plea in this regard. Having carefully considered the reasoning of the Court below and the material available on record, I do not find any error in the order under revision.

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Hence, the Civil Revision Petition is dismissed. As a sequel, CMP.No.6240 of 2011, filed by the petitioner for interim relief, is disposed of as infructuous.

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______________________ (C.V.Nagarjuna Reddy, J)

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18^th January, 2012 LUR

Nandikolla Dhanaraju v. Sri Jana Jyothi Housing India Pvt. Ltd.

Case brief

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Nandikolla Dhanaraju v. Sri Jana Jyothi Housing India Pvt. Ltd.

Case brief

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