HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION NO.4838 of 2006 Dated 15th February, 2011 Between: Gunda Rajeshwar Rao .. Petitioner And N.Seetharama Reddy .. Respondent This Court made the following: HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION NO.4838 of 2006 ORDER: The point that arises for determination in this Judgment Debtor’s revision is whether as held by the executing Court the judgment debtor (J.Dr) is liable to be detained in civil prison in execution on the ground that though he has got the means to pay the decree debt he has refused or neglected to pay the same. 2. The point arises in the following circumstances. The respondent-decree holder (D.Hr) obtained a money decree dated 06.06.2001 against the J.Dr in O.S.No.117 of 1996. It is not clear whether this decree was obtained from the executing Court which is the Court of I Additional Senior Civil Judge, Warangal, or any other Court. It is also not clear from the record as to what was the nature of the claim made in O.S.No.117 of 1996. However, at the time of arguments, it was brought to my notice by the learned counsel for the D.Hr that the suit was for specific performance of an agreement of sale and that while refusing the said relief, the Court which tried O.S.No.117 of 1996 granted the alternative relief of refund of advance sale consideration to an extent of Rs.2,10,000/- and that is how the money claim arose against the J.Dr. Be that as it may, the decree holder filed E.P.No.398 of 2002 for recovery of a sum of Rs.4,27,528/- including interest stated to be due from the J.Dr upto the date of filing of the execution petition (E.P.). The execution was sought by the arrest and detention of the J.Dr in civil prison. 3. After notice the J.Dr filed counter. His version is that he suffered losses in his business and he has no properties at all and he is practically in insolvent circumstances and has no means to pay the decree debt. He then stated that he has no intention to evade payment of the decree debt and he is unable to pay the same only because of his not possessing any means to pay it and therefore execution against him by arrest and detention is not maintainable. 4. In the course of enquiry before the executing Court the D.Hr. N.Seetharama Reddy himself gave evidence as P.W1, but did not file any documents. On the other hand, the J.Dr in support of his case, himself gave evidence as R.W1 and also examined his cousin P.Venkata Panesh as R.W2 and filed Exs.B.1 to B.6 documents. 5. The executing Court by its order dated 24.06.2005 upheld the case of D.Hr and found that the J.Dr has got the means to pay the decree debt, but he has wilfully avoided to pay it and therefore execution can be granted by arrest and detention of the J.Dr. It then ordered that the J.Dr shall undergo imprisonment in a civil prison for a period of three months. It is this order which is now challenged by the J.Dr in this revision. 6. Arguing on the point, the learned counsel for the J.Dr argued that this is a case where the D.Hr failed to lead any evidence from his side to show that the J.Dr is in possession of properties or means to pay the decree debt, but the executing Court wrongly proceeded to hold that the J.Dr has got the means on its own surmises and consequently the order should be set aside. He relied upon the provisions of Section 52 C.P.C which deals with the powers of executing Court to order arrest and detention of the J.Dr and pointed out that the executing Court without any basis and in violation of the said provision passed the impugned order directing arrest and detention of the J.Dr. He also relied upon a decision of our Supreme Court given in JOLLY GEORGE VARGHESE AND ANOTHER vs. THE BANK OF COCHIN[1] in support of his above contention and stated that in view of this decision and having regard to the evidence on record the impugned order cannot be sustained. 7. On the other hand, the learned counsel for the D.Hr argued that the executing Court passed the impugned order after considering all the circumstances and it is a well- founded one and consequently there is no reason to interfere with it. He also pointed out that against the decree granted in O.S.No.117 of 1996 the judgment debtor has also filed appeal i.e., A.S.No.2746 of 2001 and it is pending on the file of this Court and in that appeal the J.Dr did not file stay petition also apprehending that if stay petition is filed, a conditional order recording deposit of amount would be passed and for that reason and to avoid payment, he did not file any stay petition. 8. The point is now taken up. A perusal of the order of the executing Court would show that it gave a finding that the D.Hr failed to prove that the J.Dr has got the properties or means to pay the decree debt. Having held so, it however basing upon the statements of the J.Dr in his evidence that his first son is studying in Engineering Course at Chennai in management quota, his first daughter is studying Intermediate course in Warangal in a junior college there and his last son is studying 10th class at the same place, held that the J.Dr himself was paying the educational expenses for his three children and concluded that the J.Dr has therefore got the means. It drew this inference on the premise that an engineering course in a management quota at Chennai is a very expensive affair and also intermediate education of his daughter requires Rs.9,000/- per year, the J.Dr must be having the means as otherwise he would not have gone for such expensive courses for his first son and daughter. In that view of the matter, it held that the J.Dr has got the means but failed to pay the decree debt. It did not accept the J.Dr’s plea that his father was bearing the educational expenses of his children. 9. As already mentioned supra, the executing Court found that the D.Hr failed to show that the J.Dr has got properties or means. In holding so and after considering Exs.B.1 to B.6 documents, it held that the J.Dr cannot be said to have any connection by the date of the E.P. with the Rice Mill mentioned by the D.Hr. Having held so, it found against the J.Dr on his above statements regarding the educational expenses/education of his children. It is true that even if a plaintiff or D.Hr fails to prove his case, still his case can be upheld if the evidence let in by the defendant or J.Dr contains any material or circumstances which probablize the case of the plaintiff or D.Hr and this is the normal rule of evidence. 10. It may however be noted that in the present case though the J.Dr admitted about the educational courses pursued by his sons and daughter as mentioned supra, he explained that the said educational expenses were being borne by his father. The executing Court did not consider this aspect. It also held that the evidence of R.W.2 who supported the J.Dr regarding his means cannot be believed because of certain inimical terms said to have been admitted by him with regard to his relationship with the J.Dr. The above approach of the executing Court cannot in my opinion be said to be correct. 11. It may be noted that the proviso to Section 51 C.P.C stipulates that the various situations in which a J.Dr can be ordered to be detained in a civil prison in execution of a decree for money. Here the executing Court in substance held that the ground on which the J.Dr can be arrested would fall in the situation covered by clause (b) of the said proviso i.e., the J.Dr has had since the date of the decree the means to pay the decree debt but refused or neglected to pay it. A perusal of the said proviso would show that the whole burden lies on the D.Hr to establish one or other of the situations covered by the said proviso in which a J.Dr can be ordered to be arrested and sent to civil prison in execution of a decree for money. This position is abundantly clarified in the JOLLY GEORGE VARGHESE’s case (1 supra ). 12. In the case on hand, the executing Court simply went by the version of the J.Dr about the educational courses pursued by his children and the supposed expenditure thereon and inferred that he must be held to be bearing the said expenditure which may run into more than a lakh rupees per annum on its own surmise without any evidence and therefore he must be held to have the means to pay the decree debt. This approach of the executing Court cannot be said to be correct, especially, when it held that the D.Hr has failed to show that the J.Dr has got any properties or means. 13. The learned counsel for the D.Hr at one stage argued that the D.Hr is a pensioner and he lost his valuable money and if the J.Dr is let off there is no possibility of recovering his money. This argument cannot be accepted in the face of the proviso to Section 51 C.P.C. whatever may be the fate of the D.Hr. The D.Hr cannot be permitted to seek the arrest and detention of the J.Dr unless he positively shows that the J.Dr has got the means to pay the decree debt and this is the legal position laid down in Section 51 C.P.C. The executing Court having held that the D.Hr failed to prove the above aspect proceeded to order the arrest of the J.Dr on a surmise drawn by it about the means of the J.Dr having regard to the education courses pursued by his children without any further proof that J.Dr was meeting that expenditure though he explained that his father was meeting the said expenditure. Thus, the above finding of the executing Court can be said to have been based on its own surmise and not on evidence. Similarly the non- filing of the stay petition in his appeal by the J.Dr cannot also be made a ground to order his arrest for the simple reason that if he has failed to file any stay petition it may lead to an inference that he did not file it because of a conditional stay which may be granted in it regarding payment of a part of the decreetal amount. 14. What should be noted is that the order of the executing Court would show that it passed the said order ignoring the rules relating to the burden of proof on the point while holding that the D.Hr failed to prove means of the J.Dr. Thus the order of the executing Court cannot be sustained. It may also be noted here that in the record received from the executing Court, it is found that Exs.B.1 to B.6 are found marked in the evidence of R.W2 and they are shown in the appendix of evidence given at the foot of the impugned order. Ex.B.1 is stated to be a partnership deed, Ex.B.2 an alteration deed, Ex.B.3 a retirement deed, Ex.B.4 a dissolution deed, Ex.B.5 another partnership deed and Ex.B.6 a dissolution deed. Again a different set of documents were marked as Exs.B.1 to B.5 in the evidence of R.W1 i.e., the J.Dr and they purport to be registration copies of certain documents. The executing Court did not consider the said documents which were filed by the J.Dr to show that he has no means and it simply went by its surmise drawn by it on the basis of the educational courses pursued by his children. This is already held to be incorrect approach for the reasons aforesaid. 15. Accordingly, the point is decided in the negative and this revision is allowed setting aside the impugned order of the executing Court. It shall be open for the D.Hr to pursue his remedies in execution, if he is entitled to do so under the law. No costs. __________________ N.Ravi Shankar,J 15th February, 2011 VJL/CVRK [1] (1980) 2 SCC 360