HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.4125 OF 2010 Dt.9.9.2010 Between: A.P.Ayyappan ..Petitioner And M.Sargunam ..Respondent HON’BLE SRI JUSTICE V.ESWARAIAH C.R.P.NO.4125 OF 2010 ORDER: Heard the learned counsel for the petitioner. The petitioner herein is the 2nd defendant/judgment debtor, who suffered a decree in O.S.No.331 of 2003 on the file of the Principal Junior Civil Judge, Puttur, for a sum of Rs.45,506/-. As the decretal amount was not paid, the respondent decree holder filed E.P.No.66 of 2005 in the said O.S.No.331 of 2003 under Order 21, Rules 37 and 38 read with Section 40 C.P.C., to issue arrest warrant to the judgment debtor and to send him to civil prison for realization of the E.P. amount as the 2nd judgment debtor is having sufficient means and he is evading to pay the E.P. amount. The said E.P. was resisted by filing counter stating that he has no means to pay the said amount and he is not having any other property and he has no other source of income for payment of the E.P. amount and in fact the 1st defendant filed an insolvency petition and the decree holder proceeding against the 2nd judgment debtor alone. At the time of enquiry, the decree holder was examined as P.W.1 and marked Ex.P-1 and the petitioner herein was also examined as R.W.1, but no documents were marked. According to the decree holder, the petitioner herein is running a provisions shop and also working as Commission Agent by supplying provisions to the entire town in Puttur and getting Rs.50,000/- per month and he is having own house in D.No.5-20 in S.No.191/2 in Puttur Municipality and getting Rs.10,000/- per month and also getting Rs.1,00,000/- per annum from his agricultural income. It is stated that the petitioner herein is having sufficient means and capacity to discharge the decretal amount and he is voluntarily evading to pay the E.P. amount. It is further stated that according to Ex.P-1 the petitioner is having an apartment in D.No.5-20 to an extent of 170 sq. yards with specific boundaries in S.No.191/2A. In the above circumstances, the court below was of the opinion that it is just and proper to give liberty to the petitioner for payment of decretal amount in four equal monthly instalments, failing which, it is open for the decree holder to pursue his remedy for sending him to civil prison. The order, dated 14.3.2007 in the said E.P.No.66 of 2005 has become final and the same has not been questioned. Therefore, the only course open for the petitioner is that he has to pay the said amount in four equal monthly instalments, as ordered by the court below, for avoiding the civil prison. Admittedly, the petitioner has not paid the said amount and he has filed E.A.No.258 of 2010 stating that he has no means to pay the E.P amount and the order of arrest is pending since 2007 for payment of batta and batta was not paid and on several occasions the matter has been adjourning on some other grounds. It is stated that his right leg was severally fractured and he could not move from the bed and in spite of it the Amin of the court brought him in auto to the court and therefore requested the court to cancel the warrant of arrest as he is suffering with severe right leg fracture and it would take six months to recover and to enable him to walk and therefore the warrant of arrest may be cancelled on the ground of illness under Section 59 C.P.C. No doubt, under Section 59 C.P.C., at any time after a warrant for the arrest of a judgment debtor has been issued, the court may cancel it on the ground of his serious illness and the court may release him, if, in its opinion, he is not in a fit state of health to be detained in the civil prison. The court below dismissed the said application by order dated 23.7.2010 stating that originally the decree was passed in 2003 and the matter is being dragged on some pretext or other and in spite of taking several adjournments the judgment debtor is intentionally not fulfilling the decree amount. It is stated that no steps have been taken since 2003 onwards to fulfil the decree amount as the E.P. filed by the decree holder was allowed as early as on 14.3.2007 and it cannot be said that the so-called fracture does not come serious illness. The petitioner has not filed any medical evidence stating that he is suffering from serious illness and unable to serve imprisonment. Therefore, I am of the opinion that there is no justification on the part of the petitioner for cancellation of the warrant. The civil revision petition is without any merit and the same is liable to be dismissed. The civil revision petition is accordingly dismissed. _________________ V.ESWARAIAH, J. 9.9.2010 kpr