IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRDESH:: HYDERABAD TUESDAY, THE FIRST DAY OF MARCH TWO THOUSAND AND ELEVEN PRESENT:: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3571 OF 2008 Between: Akkarapaka Madhavachari …Petitioner A n d Kandukuru Baskarachari ..Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.3571 OF 2008 ORDER: This civil revision petition is directed against the order dated 04-08-2008 in E.P.No.116 of 2006 in O.S.No.212 of 2004, on the file of the Junior Civil Judge, Sullurpet, wherein the said E.P filed by the respondent herein, the decree holder, for realization of the decree debt by seeking arrest of the judgment debtor under Order XXI Rule 37 CPC, was allowed. 2. Heard the learned counsel for the petitioner and the learned counsel for the respondent. Perused the records. 3. The respondent herein filed the suit O.S.No.212 of 2004 for recovery of certain amount due from the judgment debtor and the suit was decreed on 11-08-2006 for a sum of Rs.1,00,336/- besides costs. The respondent-decree holder filed E.P for realization of the same by seeking arrest of the judgment debtor on the ground that in spite of having sufficient means, the judgment debtor is evading to pay the same. According to the decree holder, the judgment debtor is doing goldsmith business in his own house situate at Katcheri Street, Sullurpet worth Rs.10 lakhs and is also earning Rs.10,000/- per month from business. He further pleads that the judgment debtor has got landed property in Tada village which is worth Rs.2 lakhs. The judgment debtor filed a counter stating that he has no capacity to pay the decree debt. The decree holder was examined as P.W.1 and Ex.A-1 sale deed executed by the judgment debtor was marked. The judgment debtor was examined as R.W.1. On a consideration of the evidence available on record, the execution Court held that the judgment debtor is having sufficient means to pay the EP amount in lump sum but is intentionally evading to satisfy the decree debt. 4. The learned counsel for the judgment debtor would contend that when according to the decree holder himself the judgment debtor is having properties, he can as well proceed against them instead of proceeding against the person of the judgment debtor. In that connection, he relied on a decision in POTHUNEEDI LAXMAN RAO V. KADASU MUNESARA RAO[1] wherein this Court observed that when the decree holder admitted that the property attached will satisfy the decretal amount, the lower Court without taking any recourse for sale of the same and ordering arrest of JDr and detain him in civil prison is not at all warranted. In the above case, even according to the decree holder, the judgment debtor was having only one acre of land worth Rs.4 lakhs and it fetched income of Rs.30,000/- per annum and also forty cents of dry land worth Rs.40,000/- and that the judgment debtor was doing business and earning Rs.10,000/- per month. The encumbrance certificate showed that the judgment debtor mortgaged the land to Primary Agricultural Cooperative Society and there was no evidence to support the plea of the decree holder that the judgment debtor was having forty cents of dry land. According to the judgment debtor, he was working as a coolie and hence he has no means to pay the decree debt. This Court, in the facts and circumstances of that case, observed that in view of the drought conditions prevailing in the State, the submission made by the learned counsel for the petitioner that the judgment debtor is working as a coolie since he is not getting income from the land, has to be accepted. Under those circumstances, when other modes are available for execution of decree, ordering arrest and detention was held to be not justified. 5. The decision cited is not applicable to the facts of the present case wherein the judgment debtor has admitted in the cross-examination that he is doing business and his shop is located in Katcheri Street and is worth Rs.1 lakh. He also admitted that the schedule property was mortgaged to one Ashok Kumar Jain for Rs.2,40,000/- and the mortgagee filed suit before the Senior Civil Judge, Gudur. He also admitted that he paid away the mortgage debt to the mortgagee and the suit was also withdrawn subsequent to filing of the EP. Thus, on his own showing the judgment debtor was able to discharge the mortgage debt and realize the property from the mortgage which is indicative of his means to pay. Added to that, his admission that he is doing business by running a shop in Katcheri Street would fortify the contention of the decree holder about the sufficiency of means of the judgment debtor to discharge the decree debt. 6. In the circumstances, in view of the material available on record, particularly the admissions of the judgment debtor himself, it must be held that the judgment debtor is having sufficient means to discharge the decree debt, but is evading to pay the same. Though the EP was filed in the year 2006, the judgment debtor has not chosen to discharge the decree debt. The judgment debtor has already gained sufficient time for discharging the decree debt. 7. In the circumstances, it is held that the impugned order directing issuance of warrant for arrest of the judgment debtor under order XXI Rule 37 CPC does not call for any interference. 8. In the result, the civil revision petition is dismissed. There shall be no order as to costs. _____________________ G.V.SEETHAPATHY, J 01st March, 2011 Lrkm. [1] 2005(4) ALD 833