IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN PRESENT: THE HON'BLE SR4I JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.627 of 2008 Between: Penna Venkata Krishna Reddy ... PETITIONER AND Kunda Pattabhi Rami Reddy ... RESPONDENT ORDER: This revision is directed against the order of the Executing Court holding that the petitioner/judgment debtor has means to pay but he is avoiding to pay the amount under the decree and therefore, directing the arrest of the petitioner. 2. The respondent herein who is the decree holder obtained a decree against the petitioner in O.S.No.5 of 1986 on the file of the Principal Senior Civil Judge, Nellore under decree dated 25-06- 1993. 3. The present E.P. was filed for execution of the said decree and in the said decree the respondent herein filed an application seeking arrest and detention of the petitioner/ judgment debtor. 4. At an earlier instance the Executing Court has allowed the similar application by order dated 02-03-2005 and the same was questioned by the petitioner in C.R.P.No.1734 of 2005. By order dated 14-08-2006 this Court found that the said order of the Executing Court is totally without reasons and unsustainable as the conclusions drawn by the Executing Court relating to the means of the petitioner were not based on any evidence. This Court, therefore, set aside the order of the Executing Court and remitted the E.P. to the Court below for fresh consideration in the light of the observation made in the order. 5. After the remand the Executing Court has once again considered the matter in the light of the further evidence adduced by both the parties while the respondent/decree holder has produced three more documents Exs.A-2 to A-4 and the petitioner/decree holder has produced Ex.B-4. By the documents subsequently produced by the respondent/ decree holder namely Exs.A-2 to A-4 he wanted to establish that the mother of the judgment debtor holds some agricultural lands as confirmed by the aforesaid documents and he relies upon the certificate issued by the Mandal Revenue Officer and contended that the petitioner’s mother is no more and he automatically succeeds to her properties and thereby assets and means of the petitioners are established. 6. The petitioner on the contrary has produced Ex.B-4 a certificate issued by the Tahasildar, Penagalur mandal, to substantiate that his mother is very much alive and staying at Banglore along with his other brother and such disputed statement of the respondent/decree holder that she is no more. The Executing Court has examined the matter in the light of the said documents and has now reached conclusion that the petitioner had means to pay the decreetal amount and that the arrest warrants be issued. 7. Heard the learned counsel for the petitioner and learned counsel for the respondent. 8. At the outset, the findings recorded by the Executing Court under the impugned order in paragraph No.9 and thereafter are clearly perverse and is based on no evidence whatsoever. 9. The conclusion of the Executing Court that it was for the petitioner to establish that his mother is alive is fundamentally incorrect. The Executing Court has failed to notice that it is the respondent/decree holder who has alleged that the mother of the petitioner is no more and thereby further alleged that the petitioner succeeded to her properties, whereby the burden of establishing the said allegation was entirely on the respondent/decree holder. The Executing Court, however, had reached a conclusion against the petitioner by putting the said burden on the petitioner and expected that petitioner should have examined his mother to establish that she is alive. The Executing Court has presumed merely on inference by the decree holder and held against petitioner that his mother is no more. 10. The Executing Court though noticed that even according to the decree holder there is no document to establish that the petitioner is running Krishna Industries has still proceeded to find as if the petitioner has means merely on the circumstances of the property of his mother. The said conclusions are, therefore, clearly unsustainable and based on no evidence whatsoever. The respondent, on whom the burden of establishing the means of the petitioner/ judgment debtor rests, has failed to establish the same. The impugned order, therefore, is clearly not sustainable and is liable to be set aside. 11. Learned counsel for the respondent, however, submits that the decree obtained as early as on 25-06-1993 remains unexecuted and submits that the petitioner/judgment debtor has sufficient means but the decree holder has so far failed to establish that the judgment debtor has means to discharge the decree. Therefore, the learned counsel for the respondent submits that if he is given an opportunity, he would establish and satisfy the Executing Court with respect to means of the judgment debtor. 12. Keeping in view of the overall facts and circumstances in mind and the fact that the decree has remained un-executed right from 25-06-1993, in the interest of justice, I deem it appropriate to set aside the impugned order and remit the E.P. to the Executing Court for fresh enquiry, in accordance with the observations of this Court in C.R.P.No.1734 of 2005 dated 14- 08-2006 referred to above. It is made clear that the respondent as well as the petitioner is at liberty to appear, adduce further evidence as they deem it appropriate and considering the above, the Executing Court shall hear and determine the E.P., in accordance with law. 13. The impugned order is set aside and the Civil Revision Petition is disposed of accordingly. There shall be no order as to costs. ____________________________ VILAS V. AFZULPURKAR, J July 01, 2010. PN THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR CIVIL REVISION PETITION No.627 of 2008 July 01, 2010