THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2949 of 2007 Date: .02.2011 Between: Smt. L. Vijaya Bharathi … Petitioner/Petitioner Decree holder AND N. Venkataramna … Respondent/Respondent Judgment debtor THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2949 of 2007 ORDER: The decree holder in O.S.No.23 of 2001 on the file of the Junior Civil Judge, Dharmavaram, Anantapur District sought to execute the judgment and decree dated 20.09.2004 under Order 21 Rules 37 and 38 of the Code of Civil Procedure by way of the arrest and detention of the judgment debtor in civil prison. E.P.No.32 of 2005 laid by the decree holder for this purpose was dismissed by the learned Junior Civil Judge, Dharmavaram (as the executing Court), through the order dated 23.04.207. The decree holder, consequently, preferred this revision. 2. The plaintiff obtained a money decree for a sum of Rs.84,389/-. When the decree holder tried to execute the same by way of the arrest and detention of the judgment debtor in civil prison, the judgment debtor pleaded that he has no means and that he, therefore, cannot be arrested. The execution Court painstakingly quoted the placita of various decisions and concluded that the decree holder failed to make out a case for the arrest and detention of the judgment debtor in civil prison. 3. The decree holder averred that the judgment debtor has both movable and immovable properties and that he has been evading honouring the decree, despite having means to satisfy the decree. The decree holder, consequently, sought for the arrest of the judgment debtor. The judgment debtor, in his counter, contended that he has to maintain a big family with a meagre income, that his wife is ailing and that his children are students. The judgment debtor further averred that he is the private driver of a van, that he derives meagre income, that he is not able to make both his ends meet and that the question of his having means to satisfy the decree, therefore, did not arise. 4. The decree holder examined herself as the only witness on her side. The judgment debtor, apart from examining himself, has also examined his employer as RW.2. The decree holder placed reliance upon the certified copy of No.1-B Namuna as Ex.A.1. 5. Smt. V. Hima Bindu, learned counsel, appearing on behalf of Sri P. Veera Reddy, learned counsel for the revision petitioner-decree holder contended that counter of the judgment debtor is vague and that the judgment debtor has failed to prove his contention raised through his counter. The judgment debtor, it may be recalled, contended that his wife has been ailing. As rightly submitted by the learned counsel for the decree holder, the judgment debtor did not aver and did not even depose the nature of the ailment that his wife has been suffering from. Again, the judgment debtor averred that his children are students. The judgment debtor would not state how many children he has and what have they been studying. The judgment debtor also averred that he has been working as a private van driver and has been deriving meagre income as salary. He did not mention the name of his employer nor did he mention the salary in his counter. I wholly agree with the contention of the learned counsel for the decree holder that the counter of the judgment debtor is very vague, if not obscure. However, as rightly submitted by Sri K. Maheswara Rao, learned counsel for the judgment debtor, the initial burden is upon the decree holder to establish the case. The question of considering vagueness or otherwise of the judgment debtor’s stand would arise only when the decree holder primarily establishes the case for the arrest and detention of the judgment debtor. It is the stand of the learned counsel for the judgment debtor that the decree holder did not prove the case that the judgment debtor has got means. 6. Ex.A.1, as already pointed out, is the No.1-B Namuna. Admittedly, it does not show the name of the judgment debtor as the owner of the property. It merely shows the name of the parents of the judgment debtor. Inter alia, it is the contention of the learned counsel for the decree holder that the father of the judgment debtor died and that the judgment debtor, therefore, stepped into the shoes of his father as the owner of the property. I am afraid that this contention cannot be countenanced. It is not clear as to how many children does the father of the judgment debtor has apart from the judgment debtor. Is the judgment debtor the only child of his parents? It is not clear. From Ex.A.1, it cannot be said that the judgment debtor succeeded to the estate of his father. Ex.A.1 discloses that it relates to Ac.4.10 cents of dry land in S.No.651/1A. It did not show the judgment debtor as the owner of the property. It also does not show that the judgment debtor was cultivating the lands covered by Ex.A.1. Where Ex.A.1 relates to the parents of the deceased albeit it is an admitted fact that the father of the judgment debtor is no more, I am afraid that Ex.A.1 ifso facto does not establish the title of the petitioner to the property covered by Ex.A.1. The decree holder has to establish his case with reasonable precision. The learned counsel for the decree holder claimed that the counter of the judgment debtor is vague. I have already accepted his claim. Ex.A.1 in its turn is equally vague. It does not establish that the judgment debtor has means to honour the decree and has failed to do so. The decree holder, therefore, has to establish through other means whether the case of the decree holder is made out that the judgment debtor has means to honour the decree and has failed to do so. 7. The decree holder referred to the admissions of the judgment debtor in this regard. The learned counsel for the decree holder contended that the judgment debtor admitted that he owns house property and that it, therefore, is an admission, that the judgment debtor has means to honour the decree. The evidence of the judgment debtor as RW.1 in this context was quoted by the execution court. I also reproduce the same: “It is true to say that I am having house property. I am residing in Door No.16/24, which belongs to my father-in-law. It is not true to say that the house bearing No.16/24 situated in Kunuthur Village belongs to her (sic). I have not filed any document to show that such house belongs to my father-in- law.” In the first sentence, the judgment debtor deposed that he has got house property. This is the point on which the learned counsel for the decree holder relies upon. As rightly submitted by Sri Maheswara Rao, learned counsel for the judgment debtor, a stray statement by a witness cannot be treated as admission. In the evidence of the judgment debtor quoted above, the judgment debtor stated that the house property belonged to his father-in-law. I am afraid that the relevant evidence of PW.1 quoted above cannot be read as the admission of the judgment debtor that he has house property. 8. The learned counsel for the decree holder urged that the judgment debtor failed to prove that house bearing door No.16/24 is owned by the father-in-law of the judgment debtor. It is for the decree holder to show that house baring No.16/24 or any house property for that matter is owned by the judgment debtor. When the decree holder failed to show the same, it is not necessary for the judgment debtor to establish that the house property referred to by him belonged to his father-in-law and not to him. 9. The execution Court placed reliance upon the famous Jolly Georg Varghese v. Bank of Cochin[1] to hold that it is for the decree holder to clinchingly establish the means of the judgment debtor before arrest and detention in civil prison of the judgment debtor can be ordered. V.R. Krishna Iyyer, J referred to international covenants in this case and held that arrest and detention of the judgment debtor in civil prison for not honouring the decree would be violative of human rights, if the reason for the judgment debtor in failing to honour the decree is his financial inability. Indeed, it is the law of the land that the judgment debtor can be sent to civil prison if it is established that he has means and has failed to honour the decree despite possessing means. It is, however, for the decree holder to show that the judgment debtor has means and has failed to honour the decree. Therefore, the onus is upon the decree holder to establish that the judgment debtor has got means. 10. Indeed the learned counsel for the decree holder has proceeded on the assumption that the onus is upon the decree holder. However, his claim is that the decree holder has established that the judgment debtor has means and has evaded to honour the decree despite means. 11. I have already considered the alleged admission of the judgment debtor regarding his owning house property. 12. The learned counsel for the decree holder also pointed out that the judgment debtor admitted that he is the driver of a van and that he, therefore, has means. It would appear that the judgment debtor has been working as a driver as RW.2. He was engaged to drive a van bearing registration No.‘407’. The judgment debtor, in his counter, as well as in his evidence claimed that he has been getting meagre income as a driver and that the same was not sufficient even to make both his ends meet let alone having surplus money to satisfy the decree. The learned counsel for the decree holder contended that where a judgment debtor admitted that he has been working as a driver, onus shifts on to the judgment debtor to show that his income is not sufficient to satisfy the decree. I am not able to agree with this stand of the learned counsel for the decree holder. The judgment debtor merely admitted that he has been working as a driver; it is for the decree holder to show that the judgment debtor has enough salary/income to satisfy the decree. The decree holder failed to establish the salary/wages of the judgment debtor. Barring for the assertion that the judgment debtor has got means, the decree holder failed to prove, through any evidence, that the judgment debtor has got means. For the reasons already stated, Ex.A.1 cannot be worked out as a factor showing that the judgment debtor has got means, since Ex.A.1 did not establish the title of the judgment debtor over the property in S.No.651/1A. The judgment debtor further denied possessing Ac.0.28 cents in S.No.636/2, Ac.4.92 cents in S.No.451 and Ac.4.73 cents in S.No.666/1. It indeed was open for the decree holder to establish that the judgment debtor owned these properties. Merely because, the decree holder quoted the survey numbers, the burden does not shift on to the judgment debtor to disprove the claim of the decree holder. Certainly, the judgment debtor also could have disproved by producing No.10(1) account or adangals in respect of S.Nos.636/2, 451 and 661/1 that he did not own those lands. However, as the initial burden is upon the decree holder, the failure of the judgment debtor to produce negative proof cannot attract an inference that the judgment debtor owned these properties. Where the decree holder failed to establish any of the allegations relating to the means of the judgment debtor, the execution Court was perfectly justified in dismissing the execution Court. I also do not consider that it is a fit case where the case needs to be remanded to the execution Court for consideration afresh. It is not contended by the decree holder that there is additional evidence to remit the case to the execution Court for fresh consideration. 13. The finding of the execution Court that the decree holder failed to prove that the judgment debtor has means is perfectly justified. I, therefore, see no merits in this revision. 14. The civil revision petition is, accordingly, dismissed. There shall be no order as to costs. _______________ K.G. SHANKAR, J Date: .01.2011 Isn [1] AIR 1980 SC 470