IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD MONDAY, THE THIRTY FIRST DAY OF JANUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4619 OF 2009 Between: Botla Tata Rao .....PETITIONER AND Indusland Bank Limited and another ....RESPONDENTS The Court made the following: THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4619 OF 2009 ORDER: This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908, (for short, “C.P.C.”) is directed against the order, dated 26.06.2009, in E.P.No.37 of 2007 in A.A.No.77 of 2005, on the file of I Additional District Judge, Rajahmundry, East Godavari, whereunder and whereby, the petition filed to issue notice under Order XXI Rules 37 and 38 C.P.C. to recover a sum of Rs.3,05,227/- by arrest of the petitioner herein and respondent No.2 herein/judgment debtors and detain them in civil prison, was allowed. 2. Heard. 3. Section 115 C.P.C. provides that the High Court may call for the record of any case which has been decided by any Court sub-ordinate to, wherein no appeal lies, to satisfy itself on three aspects viz., (i) that the order passed by the sub-ordinate Court is within its jurisdiction (ii) that the case is one in which the Court ought to exercise jurisdiction and (iii) that in exercising jurisdiction, the Court has not acted illegally, that is, in breach of some provision of law, or with material irregularity, that is, by committing some error of procedure in the course of trial which is material and that it may have affected the ultimate decision. 4. The object of Order XXI Rule 37 C.P.C. is to afford protection to honest debtors who are not capable of paying their dues for reasons beyond their control and who have not committed any act of bad faith. The test is whether the debtor is unwilling to pay in spite of his means to pay. In other words, the judgment debtor has or has had since the date of decree the means to pay the amount covered by the decree or some substantial part thereof and refuses or has refused or neglected to pay the decreetal amount. The purpose of arrest and detention of judgment debtor in civil prison is not to punish him for any crime, but to enable the decree holder to realize the fruits of a decree passed in his favour. Mere non-payment of the decreetal amount by the judgment debtor is not enough. It is some willful conduct on the part of judgment debtor in not paying the amount in relevant time and such conduct may render him liable to be arrested and detained. 5. The evidence of PW.1 would go to show that the petitioner and respondent No.2/judgment debtors have got means to pay the decreetal amount; that they are having fixed assets to discharge the amount; that the petitioner/judgment debtor No.1 has got land under patta No.460 in R.S.No.96 to an extent of Ac.0-80 cents at K. Surampalem Village of Gandepalli Mandal and that respondent No.2/judgment debtor No.2 is having land and a house site at K. Surampalem Village. PW.1 also admitted that he was not aware whether the said land of the petitioner is in the name of his father. When a suggestion was given to PW.1 that the petitioner was not having any property and he was doing coolie work, the same has been denied. The petitioner/judgment debtor No.1 was examined himself as RW.1. He has categorically stated that he is ready to pay the decreetal amount by way of installments. Since, RW.1 is the only son of his father, naturally the property of the father would devolve upon the son. He is said to have been doing business besides cultivating his agricultural land. Therefore, basing on the evidence on record, the executing Court rightly came to the conclusion that the petitioner/judgment debtor No.1 is having means to pay the decreetal amount and failed to pay the same. The said finding of fact cannot be said to be perverse or contrary to the evidence on record. 6. The contention of the learned counsel for the petitioner is that the decree sought to be executed is not a decree as defined under Section 2 (12) C.P.C. But, the said aspect cannot be accepted in view of Section 36 of Arbitration and Conciliation Act, 1996, which reads thus: “Enforcement – Where the time for making an application to set aside the arbitral award under Section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908, (5 of 1908) in the same manner as if it were a decree of the Court.” 7. In spite of the direction given by this Court to pay 1/3rd of the decreetal amount, the petitioner has not complied with the same. The findings of executing Court are based upon proper appreciation of evidence. Therefore, there are no grounds to interfere with the impugned order. The revision petition is devoid of merit and is liable to be dismissed. 8. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C. BHANU, J January 31, 2011 MD THE HON’BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION No.4619 OF 2009 January 31, 2011