HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5791 of 2007 and CIVIL REVISION PETITION No.3850 of 2008 Date: October 19, 2011 CIVIL REVISION PETITION No.5791 of 2007 Between: Nemalipuri Babu Rao … Petitioner/ Judgment debtor/ Defendant And Akshayapatra Murali Krishna Suri … Respondent/ Decree Holder / Plaintiff * * * CIVIL REVISION PETITION No.3850 of 2008: Between: Nemalipuri Babu Rao … Petitioner/ Judgment debtor/ Defendant And Akshayapatra Murali Krishna Suri … Respondent/ Decree Holder / Plaintiff * * * HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.5791 of 2007 and CIVIL REVISION PETITION No.3850 of 2008 COMMON ORDER: CIVIL REVISION PETITION No.5791 of 2007: This revision is at the instance of the judgment debtor who was found by the court below as avoiding the payment of decretal debt intentionally. The court below therefore held that there is every reason to believe that the judgment debtor, since the date of decree, has means to pay the decretal amount, but has neglected and continues to do so and consequently he was ordered to be committed to civil prison for a period of three months on payment of subsistence allowance by the decree holder. The said order is questioned in this revision. 2. By order dated 08.02.2008, this Court admitted the C.R.P and granted interim stay. Thereafter, the matter was listed on various dates and ultimately before this Court. When the learned counsel for the petitioner was heard on 14.9.2011, on that date as there was a request from the learned counsel that for getting instructions as to how the liability can be liquidated in instalments, the matter was adjourned to 23rd September, 30th September, 14th September and listed today. The learned counsel for the petitioner, however, states that he has not received instructions from the petitioner in that regard and therefore has once again argued the matter and the revision petition is now being disposed of on merits. 3. It may also be mentioned that on 12.3.2010 it was represented that the petitioner had instituted I.P. No.100 of 2007 and the matter was adjourned on that ground to verify and finally it was reported on 02.9.2011 that the said I.P. was dismissed long back. 4. The decree in question which is put to execution by the respondent-decree holder is for a sum of Rs.1,88,940/- with interest at the rate of 12% per annum on Rs.1,10,000/- from 04.6.2001 till the date of decree and the decretal amount mentioned in the E.P. is Rs.3,33,503/-. The respondent-decree holder sought orders as to arrest of the petitioner-judgment debtor on the ground that he is doing business in gold and has been earning substantial amounts, but has no intention to honour the decree. 5. The said application was opposed by the judgment debtor by denying all the averments. In order to establish the means of the petitioner-judgment debtor, the respondent-decree holder examined himself as P.W.1 and Bank Manager as P.W.2 apart from filing Exs.A-1 to A-3. The petitioner-judgment debtor examined himself as R.W.1 and two other witnesses R.Ws.2 and 3. 6. The evidence on record satisfied the executing court that the petitioner-judgment debtor has disposed of his immovable properties under Exs.A-1 and A-2, notarised copies of sale deeds dated 23.7.2003 and 09.8.2000 respectively. Ex.A-3 is a souvenir booklet issued by caste sangham of the petitioner wherein he advertised his gold business. Apart from the above evidence, Bank Manager P.W.2 was examined who confirmed that the petitioner-judgment debtor is working as appraiser to the bank with respect gold loans and he was paid commission on the loan amount sanctioned. The executing court therefore came to the conclusion that the petitioner has sufficient means, but he is intentionally neglecting to pay the amount. Hence, an order of arrest was passed. 7. In this revision, the learned counsel for the petitioner has raised several contentions with regard to the closure of business of the petitioner long back and that the earnings of the petitioner as appraiser even if taken into consideration, it cannot be said that the petitioner has means to discharge the debt. The learned counsel therefore states that there was no material produced by the respondent-decree holder before the executing court warranting order of arrest. 8. The learned counsel for the respondent seriously opposed these submissions and has contended that though the petitioner-judgment debtor is doing business in gold, there is absolutely no justification as to why he has not discharged the decree debt as such the order of arrest was clearly warranted on the facts of this case. 9. I have considered the contentions as above as well as the findings of the executing court. The petitioner filed a counter denying that he is working as appraiser with the Indian Bank, but P.W.2, the manager of the bank, examined by the decree holder, confirms that the petitioner is working as such and earning commission on the gold loans advanced by the bank. It is also alleged by the decree holder that the petitioner is also appraiser to several other banks and except blanket denial, the petitioner has not truthfully come forward before the executing court and only on finding that the bank manager’s evidence P.W.2 would go against him that he examined R.W.2 to state that the petitioner was only getting Rs.1,500/- per month as gold appraiser. The executing court has noticed the aforesaid conduct on the part of the petitioner and also recorded a finding that cross-examination of R.W.2 shows that he has no personal knowledge of the affairs of the petitioner and only on hearsay he has stated the earning of the petitioner as Rs.1,500/- per month. The evidence of R.Ws.2 and 3 was therefore found to be not carrying any weight. Similarly, the evidence of bank manager as P.W.2 was entitled to sufficient weight, as he had no reason to speak against the petitioner-judgment debtor when he stated that the petitioner is working as a gold appraiser with the bank. In addition to that, Ex.A-3 is the advertisement given by the petitioner himself with regard to his business in gold ornaments coupled with the fact that the alienations made by the petitioner under notarised sale deeds of 2003 clearly shows that the sale was intended to screen away the immovable property from the process of the decree. Whether notarised sale deeds confer title on the purchaser is another matter, which needs to be kept in view. Looking at the circumstances aforesaid and the detailed analysis made by the executing court while ordering arrest therefore warrants no interference. 10. C.R.P. No.5791 of 2007 is accordingly dismissed with costs. CIVIL REVISION PETITION No.3850 of 2008: 11. This is also similar revision at the instance of the same judgment debtor against the same decree holder with regard to another decree which was put to execution for recovery of an amount of Rs.96,554/-. The same evidence as was let in the E.P., which was subject matter of earlier C.R.P. referred to above, was led in this matter except P.W.2 and R.Ws.2 and 3. Similar stand was taken by the petitioner-judgment debtor, but the executing court found that the notarised sale deeds Exs.A-1 and A-2, which were marked subject to objection, were sales made by the petitioner just before filing I.P. No.100 of 2007 and the said I.P. was later dismissed. The executing court therefore found that in the said I.P. there was no protection order in favour of the petitioner and that the conduct of the petitioner-judgment debtor clearly supported the conclusion that the petitioner though had means but was intentionally avoiding to discharge the decree debt. All the aforesaid circumstances are already discussed while disposing of the CRP referred to above. For the same reason, this C.R.P. also deserves to be dismissed and is accordingly dismissed with costs. 12. In both these revision petitions learned counsel for the petitioner made submissions on the ground that the petitioner is hospitalised and his inability to offer any proposal. Keeping that circumstance in mind the petitioner-judgment debtor is granted three months time from today to discharge the debts which are subjected to execution in the respective petitions arising in these revision petitions and on failure of the petitioner to discharge the debt accordingly, the executing court in each of these revision petitions shall be free to issue appropriate warrants for arrest and committing the petitioner to civil prison for three months on payment of subsistence allowance by the decree holder. ___________________________ VILAS V. AFZULPURKAR, J Date: October 19, 2011. BSB