IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE EIGHTEENTH DAY OF NOVEMBER TWO THOUSAND AND ELEVEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4166 of 2011 Between: K. Sunanda .. Petitioner AND Niranjan .. Respondent ORDER: The civil revision petition is directed against the order in E.P. No.32 of 2007 on the ﬁle of the Junior Civil Judge’s Court, Wanaparthy , dated 08-08-2008, by which the execution petition was dismissed without costs. 2. The decree holder/revision petitioner obtained a money decree in O.S. No.102 of 1999 on 16- 03-2005 against the judgment debtor/respondent and his allegation is that in spite of the judgment debtor being a tailor earning Rs.200/- per day and having his own house and plot worth Rs.4,00,000/- in total, he wilfully neglected to pay the execution petition amount and hence, the decree be executed by arrest and detention of the judgment debtor in civil prison. 3. The judgment debtor opposed the request contending that he is earning Rs.50/- per day as a tailor and he is unable to pay the decree debt at a time, while he expressed his readiness to pay the amount in easy instalments. 4. During the enquiry into the execution petition, the decree holder and the judgment debtor examined themselves as P.W.1 and R.W.1 and while the decree holder ﬁled Ex.P.1 certiﬁed copy of the registered sale deed, the judgment debtor ﬁled Ex.R.1 encumbrance certiﬁcate to show the alleged ownership or absence of it over a plot respectively. 5. The executing Court rendered the impugned order ﬁrstly noting the ignorance of P.W.1 about the present profession of the judgment debtor or where his house is situated and the denials of the judgment debtor as R.W.1 about having any house or plot after sale of the plot purchased under Ex.P.1 as shown in Ex.R.1 encumbrance certiﬁcate. The executing Court had to necessarily agree with Ex.R.1 and the claims of the judgment debtor about want of means were found by the executing Court to have been not controverted with success by the decree holder. In the absence of the presence of suﬃcient means to discharge the decree debt or any substantial portion thereof, the executing Court dismissed the execution petition. 6. In this revision petition, the decree holder claimed that when R.W.1 claimed that he was spending Rs.20,000/- per annum towards the education of his children, the same indicated his having suﬃcient means to pay the decree debt and that he was avoiding wilfully to discharge the same. The sale of the house during the pendency of the suit is evidence of his mala ﬁde intentions and therefore, the decree holder desired that the impugned order be reversed, more so in view of the undertaking given by the judgment debtor himself before the executing Court to pay the decree debt by next date of hearing. 7. Heard Sri G. Madhusudan Reddy, learned counsel for the decree holder and Sri D.V. Srinivasa Rao, learned counsel for the judgment debtor. 8. The point for consideration is whether the material on record before the executing Court justiﬁed the execution of the decree by way of arrest and detention of the judgment debtor in civil prison ? 9. Point: The decree holder as P.W.1 admitted her ignorance about what the judgment debtor was doing by the time of her deposition or where his tailoring shop is located or where his house is located and her claim that the judgment debtor has a house, is due to the judgment debtor himself allegedly telling her that he acquired a house. Her oral claims about the judgment debtor earning Rs.200/- per day as a tailor and having a house and plot worth Rs.4,00,000/- in total are not corroborated by any document. The judgment debtor, on the other hand, claimed that he is earning his livelihood by stitching old clothes by carrying on tailoring on the footpath near old bus stand at Wanaparthy and claimed to be earning Rs.25/- to Rs.30/- per day with which he has to maintain himself, his wife, his two daughters and two sons. He also claimed to be residing in a rented house for a monthly rent of Rs.300/- and though he admitted his liability to pay the decree debt, he relied on the absence of any means to pay the same. His admission that he was spending Rs.20,000/- per annum for education of his children in discharge of parental obligation, cannot be itself considered to be the presence of suﬃcient means to pay the decree debt either in whole or in substantial part of the decree, even if the same indicates the probability of the judgment debtor earning something more than what he claimed to be earning. Any how such surmises cannot be substituted for proof and before resorting to the extreme relief of arrest and detention in civil prison, proof of existence of suﬃcient means since the date of the decree is a pre-requisite as held by precedential law. In answer to Ex.P.1 registered sale deed relied on by the decree holder, the judgment debtor ﬁled Ex.R.1 encumbrance certiﬁcate to show that the house plot was sold away even by 1982, though during the pendency of the suit much prior to the decree. It was also argued on behalf of the decree holder that the judgment debtor has very valuable implements in the tailing shop whose value also can be taken into account. But in view of the decision of this Court in Vemula Balakistaiah v. M. Venkatachalam[1], wherein the sewing machine of a tailor was held to be a tool of artisan, it is doubtful whether the movable properties existing in the alleged shop of the judgment debtor can be considered towards the presence of his means. Therefore, the order of the executing Court does not appear susceptible to any interference on merits and the civil revision petition has to fail. 10. Accordingly, the civil revision petition is dismissed without costs. _____________________ G. BHAVANI PRASAD, J Date: 18-11-2011 Svv [1] 1973(II) ALT 234