THE HON’BLE SRI JUSTICE V. ESWARAIAH Dated: 03-12-2010 CIVIL REVISION PETITION Nos. 360 AND 3109 OF 2008 CIVIL REVISION PETITION No. 360 of 2008 Between: Vudi Ramulu .. Petitioner And Janapareddi Sanyasinaidu .. Respondent CIVIL REVISION PETITION No. 3109 of 2008 Between: Vudi Ramulu .. Petitioner And Korukonda Appala Surya Rao .. Respondent THE HON’BLE SRI JUSTICE V. ESWARAIAH CIVIL REVISION PETITION Nos. 360 AND 3109 OF 2008 COMMON ORDER: Since both the revisions are interconnected, they are disposed of by this common order. The petitioner in both the revisions is one and the same and the respondents are the decree holders in O.S Nos. 80 and 81 of 2002 respectively on the file of the Principal Junior Civil Judge at Anakapalli. The said suits were filed for recovery of monies based on promissory notes which were decreed on 21-12-2005 and 01-12-2005 respectively. As the decretal amounts have not been paid by the petitioner, the respondents filed E.P Nos.85 and 86 of 2006 respectively in the said suits under Order XXI Rule 37 read with Section 55 CPC to issue arrest warrant against the petitioner and to commit him to civil prison. In support of the EPs, the decree holders filed affidavits stating that the petitioner has not obeyed the decrees, he is a government servant retired as MDO who got substantial amounts towards retirement benefits and utilized the said amounts for purchasing lands and is doing money lending business and getting an income of Rs.25,000/- per month apart from pension of Rs.6,000/- per month. It is further stated that he is having a sawmill worth about Rs.10,00,000/- situated at ThamaramVillage, Makavarapalem Mandal of Visakhapatnam District and getting an income of about Rs.15,000/- per month from it. He is also having Ac.2.00 of wet land covered by Survey Nos.215, 237, 260, 238, 241, 291, 263, 163 and 51 of Thamaram Village of Makavarapalem Mandal and he is also having slabbed house bearing No.9-1-78/6 worth about Rs.10,00,000/- situated at Kotni veedhi, Anakapalli and thus he is getting an income of Rs.50,000/- per month and though having sufficient means he is evading payment of the decretal amount. The petitioner herein filed counters admitting that he is a retired employee aged about 60 years, but suffering from illness and the question of his civil arrest does not arise as it is a bar under Section 59 CPC. It is also stated that retirement benefits are completely under the court attachment and he has no other source of income and so far, he has not received any pensionary benefits from the garnishee and he has no other individual income to eke out his livelihood. It was also stated that the other allegations made in the affidavits filed in support of the EPs are incorrect and false. The Court below by order dated 13-09-2007 allowed E.P No. 85 of 2006 and by order dated 06-082007 allowed E.P No. 86 of 2006 holding that the petitioner did not file any scrap of paper to show that he is suffering from illness and even did not examine himself to prove his contention and though having sufficient means he is avoiding to pay the decretal amount. Hence the revisions. The learned counsel for the petitioner contended that the Court below ought not to have ordered for arrest of the petitioner since he is suffering from illness and aged about 60 years and that the Court below has not followed the procedure contemplated under Order XXI Rule 40 CPC. He further contended that ordering arrest of the petitioner amounts to violation of Article 21 of the Constitution of India and in support of this contention, he has placed reliance on a judgment of the Supreme Court in Jolly George Varghese and another vs. the Bank of Cochin[1]. The Supreme Court in the said case held that to be poor, in this land of poverty is no crime and to recover debts by the procedure of putting one in prison is to flagrantly violative of Article 21 of the Constitution of India unless there is some proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other gave illness. Unreasonableness and unfairness in such a procedure is inferable. I am of the opinion that the said judgment of the Supreme Court has no relevance to the facts of the present case. In the instant case, the decree holders gave full particulars of the house, the landed property and the other business of the petitioner and they have also entered the witness box and confirmed the same, but whereas the petitioner – judgment debtor except denying the averments made in the affidavits filed in support of the EPs, has not given any particulars. He has also not denied about his owning sawmill and other properties. He also did not file any scrap of paper to show that he is suffering from ill health. Therefore, the Court below rightly came to the conclusion that the petitioner – judgment debtor is having sufficient means and deliberately evading to pay the decretal amount and it is a fit case to issue arrest warrant against him under Order XXI Rule 38 CPC. Further, on payment of process, the petitioner will be arrested to bring him before the Court and on producing him before the Court, he will be detained in the Court custody on payment of subsistence allowance and then procedure as contemplated under Order XXI Rule 40 CPC will be followed. As the petitioner is yet to be arrested and produced before the Court, the contention of the learned counsel for the petitioner that the procedure under Order XXI Rule 40 CPC is not followed is not tenable. For the aforesaid reasons, I do not see any merit in both the civil revision petitions and they are accordingly dismissed. V. ESWARAIAH, J 03-12-2010 ks [1] AIR 1980 SC 470