IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TENTH DAY OF AUGUST TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3936 of 2010 Between: M. Krishnaiah .. Petitioner AND M/s. Pavan Chit Funds (P) Ltd., Mahabubnagar & 3 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3936 of 2010 ORDER: Heard Sri N. Praveen Reddy, learned counsel for the first respondent/decree holder and Sri P. Animi Reddy, learned counsel for the revision petitioner/judgment debtor. 2. The Civil Revision Petition is directed against the order in E.P.No.16 of 2010 in O.S.No.263 of 2006, on the file of the II Additional Senior Civil Judge’s Court (Fast Track Court), Mahabubnagar, dated 03.08.2010. 3. The first respondent/decree holder obtained a money decree in O.S.No.263 of 2006 and filed E.P.No.16 of 2010 for recovery of Rs.2,56,278/- by way of arrest and detention of the first judgment debtor in civil prison. The first judgment debtor claimed to be a maistry earning Rs.150/- per day whenever he had work which are insufficient even for the maintenance of himself and his family. He denied having any properties or means or income to enable him to discharge the decree debt and, hence, he desired the execution petition to be negatived. 4. During the enquiry, the executing Court examined P.W.1 and R.W.1 and marked Exs.A-1 to A-3 and B-1. The Foreman of the decree holder as P.W.1 claimed the first judgment debtor to be owning a house in Door No.20-2-17 at Ramnagar, Mahabubnagar, and also claimed that the first judgment debtor was earning Rs.25,000/- per month as a labour contractor. While he admitted that they did not file any ownership certificate or encumbrance certificate relating to the house, P.W.1 admitted that he does not know whether the house belongs to Smt. N. Shoba Rani, the wife of the first judgment debtor. He also claimed ignorance as to whether the first judgment debtor was paralyzed and not attending to any work. He, of course, produced Ex.A-1- Agreement of Chit where the first judgment debtor mentioned the house as his and the first judgment debtor, on the other hand, produced Ex.B-1-Ownership Certificate in the name of his wife in respect of the house. The first judgment debtor as R.W.1 reiterated his absence of means and not owning the house, but denied owning any house with Door No.4-11-26 or being a group maistry earning Rs.25,000/- to Rs.30,000/- per month. 5. On such evidence, the executing Court passed the impugned order opining that the decree holder did not produce any evidence to show house No.20-2-17 to be owned by the first judgment debtor, but when the first judgment debtor and his wife are residing together in the same house, it can be said to be a house property of both. The executing Court also considered the first judgment debtor being a maistry and doing agriculture has regular income and has no evidence to be produced to show the alleged illness of the first judgment debtor. The pleas of the decree holder were considered probablised and a warrant of arrest was directed to be issued. 6. The first judgment debtor challenged the said order in this revision petition contending that in the absence of any record or material in support of the oral claims about the ownership of the house or the means of the first judgment debtor, his arrest and detention could not have been ordered. How a group maistry can get Rs.25,000/- per month is unexplained and in the absence of proof of means of the first judgment debtor, mere residence in the house of the wife could not have been a ground to consider existence of means to satisfy the decree. The first judgment debtor also claimed that he is suffering from paralysis of the right hand for which he is getting Ayurvedic treatment and due to which he is not attending to the masonry work. Hence, he desired the execution petition to be dismissed. 7. The point for consideration is whether the impugned order for the issuance of warrant of arrest to the first judgment debtor can be sustained in law. 8. Section 51 of the Code of Civil Procedure, 1908 (for short, “C.P.C”), enables a decree holder to recover the decree debt by arrest and detention of a judgment debtor in civil prison and the proviso to Section 51 C.P.C specifically mandates that no execution by detention in prison can be ordered without the judgment debtor being given an opportunity of showing cause against such commitment to prison and the Court being satisfied for reasons to be recorded in writing about any dishonest transfer or concealment or removal of any property or any other act of bad in relation to property or the refusal or neglect by the judgment debtor since the date of the decree to satisfy the decree in spite of having the means to pay the amount of the decree or some substantial portion thereof. Any property exempt from attachment in execution of a decree is exempt from means under the explanation to Section 51 C.P.C. Section 59 C.P.C further mandates that the Court may cancel any warrant of arrest or release the judgment debtor if he has been arrested on the ground of serious illness or if the judgment debtor is not in a fit state of health to be detained in the civil prison. Order XXI Rule 37 C.P.C also mandates issuance of a notice to give an opportunity to the judgment debtor in this regard and on appearance of the judgment debtor in obedience to such notice or after arrest, Order XXI Rule 40 C.P.C makes it obligatory for the executing Court to proceed to hear both the parties and determine as to why the judgment debtor should or should not be committed to civil prison. 9. Thus, the provisions of C.P.C are very clear that it is only when the judgment debtor has means to satisfy the decree or a substantial portion thereof since the decree till the execution and only when the judgment debtor is in a fit state of health that he will be liable to be detained in civil prison on being arrested. 10. The impugned order did not come to any definite conclusion about the ownership of house No.20-2-17 being with the first judgment debtor and the opinion of the executing Court that even if the house belonged to the wife, the husband residing in the same house with her can be considered to have the house property along with his wife does not appear to be based on any acceptable principle or proposition of law. Though the husband and wife may be living together, the means of the wife cannot be tagged on to the means of the husband. That apart, the executing Court was also disabled from giving any finding about the claimed illness of the first judgment debtor in the absence of any evidence, but Sri P. Animi Reddy, learned counsel for the first judgment debtor placed some papers before this Court for perusal to support his contention about the first judgment debtor suffering with paralysis of his right hand. If he were really so paralyzed, the question arises as to whether he can be considered to be in a fit state of health to be detained in civil prison and if he were in such a state of health, the same would also adversely effect his capacity to earn and may be his means to pay the decree debt. Both the parties have to be, therefore, given an opportunity to establish their respective contentions about the properties, means and state of health of the first judgment debtor before the extreme step of arrest and detention in civil prison can be resorted to, while the impugned order cannot be sustained in the absence of any conclusion about the first judgment debtor having any proprietary interest in the house in question and in the absence of proof of such income for the first judgment debtor as would provide sufficient means during the relevant period. 11. Therefore, the order, dated 03.08.2010, in E.P.No.16 of 2010 in O.S.No.263 of 2006, on the file of the II Additional Senior Civil Judge’s Court (Fast Track Court), Mahabubnagar, is set aside and the matter is remanded back to the executing Court for determination on merits in accordance with law after giving every reasonable opportunity of hearing to both the parties including taking any further evidence which the parties may desire to produce in this regard before the executing Court. The Civil Revision Petition is ordered, accordingly, without costs. ______________________ G. BHAVANI PRASAD, J Date: 10th August, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.3936 of 2010 Date: 10th August, 2011 KL