HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR Dated 28-4-2010 C.R.P. No.1792 of 2005 Between: Mudda Moses. …Petitioner. And: Timatoti Prakasam. …Respondent. HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.1792 of 2005 ORDER: This Revision has been filed by the Judgment Debtor questioning the order of the executing Court in O.E.P.No.526 of 2003 dated 14th March, 2005. 2. By the aforesaid order, the executing court came to a conclusion that the Judgment Debtor has means to pay the decretal amount in lump sum and he is intentionally evading to pay the same. 3. The executing Court therefore passed an order directing the Judgment Debtor to be detained in civil prison for his failure to make payment under the decree. The said order is questioned by the petitioner in this revision. While ordering notice before admission on 8-4-2005, this Court granted interim stay of arrest subject to the condition of the petitioner depositing half of the amount within one week. The said order has been complied with. 4. On 18-12-2009, the vacate stay petition was heard and later on 5-3-2010, the C.R.P. was heard again. It was noticed that out of decree amount of Rs.99,114/-, the petitioner has already paid Rs.41,000/- and the balance amount is required to be paid. 5. Heard both the learned counsel. 6. Learned counsel relies upon the decision of the apex Court reported in JOLLY GEORGE VARGHESE AND ANOTHER v. THE BANK OF COCHIN ([1]) for the proposition that it is not avoidance to pay the decree on the part of the petitioner but his bonafide plea that the suit and decree itself is collusive and he is not bound to pay. The apex Court considered the question of powers of the Court under order 21 Rule 37 and Article 21 of the Constitution of India and while upholding that personal liberty of Judgment Debtor, the Supreme Court felt that executing Court must re-adjudicate as to whether the judgment- Debtor in the case had means to pay the decree after passing of the decree. 7. In the present case, in the execution petition, the decree holder was examined as P.W.1 and the Judgment Debtor was examined as R.W.1. The petitioner-Judgment Debtor has deposed that he is the correspondent of Shantiniketan School, Kondayapalem Gage, Nellore, Nagari, Chittoor District and stated that the decree obtained by the respondent-Decree Holder suffers from fraud and collusion and caused wrongful loss to him by contending that he is not bound to pay. He also contended that the previous counsel did not inform him about passing of decree till he received summons in the execution petition. He submitted that he has taken appropriate procedure by approaching the District Judge, Nellore in I.A.No.30 of 2004 and in unnumbered A.S. No.nil /04 is marked as Ex.B.2. In the cross examination, however, he admitted that he is an income tax assessee and he has capacity to pay the amount. 8. Based on the above, the executing Court came to a conclusion that that the petitioner-J.D.R. has means to pay the decretal amount in one lump sum. 9. The aforesaid finding particularly based upon the evidence of R.W.1 himself and his admission that he is a Correspondent of Shantiniketan School, Kondayapalem Gage, Nellore Nagiri, Chittoor District and is an income tax assessee clearly establishes that before and after the decree also, the petitioner has means 10. The learned counsel for the petitioner states that the petitioner has already filed a suit in O.S.No.329 of 2005 before the Junior Civil Judge, Nellore to set aside the decree which is in execution in the present E.P. The execution of present decree under these proceedings therefore, shall be subject to result of the said suit. 11. I see no reason to take different view from that of the executing Court and therefore, I am unable to accept the contention of the learned counsel for the petitioner and hence, the revision is liable to be dismissed and accordingly dismissed. 12. However, as the petitioner has already deposited half of the amount of the decree and the balance amount is hardly about Rs.45,000/- and odd., in that view of the matter, the petitioner is granted time till 15th June, 2010 to pay the balance amount by deposing the same before the Executing Court. In default, executing Court shall proceed in accordance with law. 13. C.R.P. is dismissed subject to concession as above. No costs. _____________________________________ JUSTICE VILAS V. AFZULPURKAR Dated 28-4-2010 BO Dvs HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. No.1792 of 2005 Dated 28-4-2010 [1] 1980 SC 470