THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.M.P.No.2307 OF 2005 AND C.R.P.No.5453 OF 2002 Date:06.06.2011 COMMON ORDER:- The Miscellaneous Petition is filed to set aside the order passed in C.R.P.No.5453 of 2002 dated 28.02.2005 setting aside the order in E.P.No.15 of 1999 in O.S.No.399 of 1994 on the file of the Junior Civil Judge at Ponnur. 2. According to the learned counsel for the petitioner/first judgment debtor-K.Raja Reddy, though the vakalat was filed on behalf of the judgment debtors, the Civil Revision Petition was allowed ex parte without giving an opportunity and therefore, the order may be set aside and an opportunity may be given. 3. In view of the above circumstances and as the order shows that none appeared though the vakalat is said to have been filed on 31.12.2003, the order dated 28.02.2005 is set aside. Consequently, the Miscellaneous Petition is ordered. 4. Heard the learned Counsel for the respondents/judgment debtors. 5. Perused the record. 6. Evidently, the Execution Petition is filed for recovery of maintenance claim by arrest of the first respondent/first judgment debtor. The liability for payment of the decretal amount is not in dispute. However, it is the claim of the first judgment debtor that he has no means to pay the amount. As can be seen from the decree, the age of the first judgment debtor-Sivanarayana is shown as 65 years on the date of filing of E.P.No.15 of 1999. According to the learned counsel for the respondents, the first judgment debtor is almost on deathbed and subsequent to allowing of the suit, E.P. was also filed but no arrest could be affected because of his old age. Therefore, taking into consideration the above facts, the petitioner is at liberty to proceed against the properties but however, according to the learned counsel for the respondents, though several documents and ownership of the property is shown under Exs.X-1 to X-7, the first judgment debtor does not possess the same. Evidently, after filing of the E.P., the first judgment debtor-R.W.1 has obtained a loan from bank. Pattadar passbook and title deeds were issued in favour of the first judgment debtor. Unless a person has got title to the property, no such documents will be issued. The question of consideration of the means has to be taken into consideration by taking note of the fact that the person owns the property and also the fact that he is cultivating and obtained a loan for cultivation. Therefore, the lower Court’s finding that the first judgment debtor has no means cannot be sustained. The only question as to whether the first judgment debtor can be sent to civil prison for realization of the debt can be decided after producing him before the Court and also his age as to whether the warrant of arrest can be executed or not. Therefore, so far as the finding of the lower Court is concerned, it does not stand to be correct in view of Exs.X-1 to X-7 and also the evidence of the Bank Manager that the first judgment debtor has taken loan and thereby, showing that he has got interest. 7. Therefore, in the above circumstances, the order passed by the lower Court does not survive for consideration and the executability of the decree cannot be doubted and I have no hesitation in holding that the first judgment debtor has got means to pay the amount. 8. Accordingly, the Civil Revision Petition is disposed of and the decree holder is at liberty to file fresh application for issuing a remedy for arrest if there is any possibility of realizing the amount by arrest of the first judgment debtor. There shall be no order as to costs. ____​________________________ N.R.L.NAGESWARA RAO, J 6th June, 2011 AMD THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.M.P.No.2307 OF 2005 AND C.R.P.No.5453 OF 2002 Date: 06.06.2011 AMD