IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (SPECIAL ORIGINAL JURISDICTION) FRIDAY, THE 18th DAY OF FEBRUARY TWO THOUSAND AND ELEVEN THE HON’BLE SRI JUSTICE N. RAVI SHANKAR CIVIL REVISION PETITION No.2936 of 2007 BETWEEN: Tubati Haranadha Babu … PETITIONER(S) And Yarlagadda Veeraiah … RESPONDENT(S) HON’BLE SRI JUSTICE N.RAVI SHAKAR CIVIL REVISION PETITION NO.2936 of 2007 ORDER: The point that arises for determination in this Judgment Debtor’s revision is whether as held by the executing Court the judgment debtor (J.Dr) is liable to be detained in civil prison in execution on the ground that though he has got the means to pay the decree debt he has intentionally avoided or neglected to pay it. 2. The point arises in the following circumstances. The respondent-decree holder (D.Hr) obtained a money decree dated 09.07.2004 for a sum of Rs.1,37,643/- against the J.Dr in O.S.No.31 of 2000 on the file of the Court of Senior Civil Judge, Purchur, which is also the executing Court. The D.Hr filed Execution Petition (E.P.) for realisation of a sum of Rs.1,80,435- 50ps including costs and interest calculated upto the date of the E.P. 3. The D.Hr sought execution of the said decree by means of arrest and detention of the J.Dr on the ground that though the J.Dr has got means to pay the decree debt he has intentionally avoided or neglected to pay it. The record also shows that the J.Dr filed an appeal A.S.No.160 of 2004 against the above decree in the concerned appellate court and the same was also dismissed. 4. The J.Dr filed counter resisting the execution by arrest and detention on the plea that he has no properties at all of his own to pay the decree debt and therefore he cannot be said to be intentionally avoiding to pay the same and consequently he cannot be detained in execution of the decree. He also pleaded that he was suffering from ill health. 5. In the course of enquiry before the executing Court the D.Hr in support of his case himself gave evidence as P.W1. On the other hand, the J.Dr in support of his case himself gave evidence as R.W1 and also examined one Lanka Venkateswara Rao as R.W2. Both sides did not file any documents and this is evident from the appendix of evidence given at the foot of the order of the executing Court. 6. After considering the evidence let in by both sides the executing Court has by its order dated 27.06.2007 upheld the plea of the D.Hr and directed that the J.Dr should be sent to the civil prison by issuing an arrest warrant. It is challenging this order the J.Dr has come up with this revision. 7. The executing Court rejected the plea of ill health of J.Dr and relied upon four circumstances to conclude that the J.Dr has got the properties or means to pay the decree debt and he is intentionally avoiding to pay it. The first is that in the E.P. the J.Dr did not lead evidence when his turn came and that he led his evidence only after the matter was closed twice holding that he has no evidence to let in after filing a petition to reopen it. The executing Court observed that the said attitude of the J.Dr itself shows that he has no intention to pay the decree debt and was interested in dragging on the matter. The second is that in another money suit brought by the D.Hr against him he suffered a money decree and following a conditional stay granted by the appellate Court he deposited a sum of Rs.50,542/- constituting half of the decreetal amount in the trial Court which disposed of that suit and that itself shows that the J.Dr has got the means. The third is that R.W2 has admitted in his evidence that the sons of J.Dr are studying engineering course in Tamilnadu and that itself shows that J.Dr was bearing their educational expenditure which may amount to a sum of more than Rs.1 lakh for each of the sons per year and the executing Court observed that this also shows that the J.Dr has got the means. The fourth is that according to the evidence of R.W2 the J.Dr was residing in a house which was given by his father-in-law to him and therefore this circumstance would also show that the J.Dr has got the property. 8. In this revision the learned counsel for the J.Dr pointed out that there was no evidence on record to support the above four circumstances and that it wrongly placed the burden on the J.Dr to show that he has got no means while in fact the D.Hr failed to prove that aspect and therefore the impugned order is liable to be set aside. The learned counsel for the J.Dr also placed reliance upon a decision of this Court given in T.DORASWAMY REDDY vs. K.KODANDA NAIDU[1]. The proposition laid down in this decision on an assessment of the evidence brought on record in this case would show that it supports the above contention of the J.Dr. The learned counsel for the D.Hr on the other hand pointed out that the above decision is distinguishable and the reasons given by the executing Court are quite sound and therefore the impugned order does not call for any interference. 9. The point is now taken up. It may be noted that in his chief- examination affidavit the D.Hr has stated that the J.Dr is in possession of cash and he has also got valuable movable and immovable properties. However, in his cross-examination he admitted that he has not filed any documents to prove that the J.Dr has got properties or he is doing any business. It may also be noted that the D.Hr did not examine any other person also to show that J.Dr is doing any business or has got means to pay the decree debt. The executing Court nowhere gave a finding that the D.Hr has proved that the J.Dr has got the means, but it laid the entire burden on the J.Dr to show that he has no means and basing upon the above four circumstances it upheld the case of the D.Hr. This approach of the executing Court cannot be said to be correct. 10. A perusal of the proviso to Section 51 C.P.C. which deals with the powers of the executing Court would show that a J.Dr can be arrested and detained in the civil prison if he has the means to pay the decreetal debt or a substantial part of it and refuses or neglects to pay it and this would fall under clause (b) of the said proviso and the wording of the said Section and proviso would show that the burden lies upon the D.Hr in the first instance to show that the J.Dr has got the means. This legal position is abundantly made clear in the above referred to T.DORASWAMY REDDY’s case (1 supra) and also a decision of our Supreme Court given in JOLLY GEORGE VARGHESE AND ANOTHER vs. THE BANK OF COCHIN[2]. 11. In my opinion in the present case there is only the solitary oral evidence of D.Hr from his side to prove his plea that the J.Dr has got the means and he did not lead in any other evidence or file any documents which may show that J.Dr has got properties or a business. The only circumstance gathered from the evidence of R.Ws.1 and 2 is that J.Dr’s wife is doing some business in the name of Satish Traders and that the J.Dr also used to sit in the business premises of the said Satish Traders and pass receipts. The D.Hr took a plea that J.Dr is a partner in that business. It was therefore for the D.Hr to adduce evidence to that effect when the J.Dr. denied the same. The executing Court held that it was for the J.Dr to show by producing the partnership deed of the said business that he was not a partner in it. Similarly with regard to the other above circumstances relied upon by the executing Court it held that it was for the J.Dr to disprove the same. May be that the J.Dr’s wife may have a business and their sons may be studying engineering course in Tamilnadu but unless there is evidence let in by the D.Hr to show that the J.Dr has got interest in the said business or he was bearing the educational expenditure of his sons it cannot be concluded that J.Dr was bearing that expenditure or was having an interest in the business and if such a view is taken in a case like this it would be only amounting to acting on a surmise. 12. Even with regard to the circumstance that J.Dr was living in a house given by his father-in-law, it may be true that he may be living in that house but there is no evidence to hold that he has title to it and the D.Hr failed to prove it. Thus the mere fact that J.Dr is living in a house of his father-in-law cannot be a circumstance to hold that he has got the means. Then coming to the deposit of half of the decreetal amount i.e. Rs.50,542/- in the concerned Court pursuant to a conditional stay granted in an appeal which also arose out of another suit filed by the D.Hr., there is no evidence to conclude that the J.Dr deposited the same from out of his own means. It is quite possible that J.Dr’s father-in-law or some of his relatives may have helped him and that deposit by itself cannot be a ground to hold that J.Dr has means especially when the D.Hr failed to prove that he has means. 13. One argument which was advanced by the D.Hr’s counsel was that if J.Drs are let off like this, it would be very difficult for the D.Hrs to realise their amounts. It may be noted that in the above two decisions it has been unambiguously laid down that it is always the burden of the D.Hr to prove that the J.Dr. has got the means to pay the decree debt and he has deliberately avoided to pay it or has neglected to pay it and unless he discharges that burden execution cannot be granted by arrest and detention of the J.Dr. This being the legal position the above argument advanced on behalf of the D.Hr cannot be accepted. 14. It may then be noted that in a revision this Court will not interfere with the order of the executing Court unless it suffers from lack of jurisdiction or excess of jurisdiction or an illegality or a patent error in adjudicating the matter. In the present case as mentioned supra the D.Hr failed to lead any evidence from his side to show that the J.Dr has got the means and on the other hand the circumstances relied upon by the executing Court in upholding the case of the D.Hr are not borne out by evidence to show that J.Dr has got the means. Not only this, the executing Court, it may be noted, in the impugned order did not specify the period of imprisonment also though Section 58 of C.P.C. speaks of the period of imprisonment to which a J.Dr may be sentenced having regard to the amount of decree debt due. In T.DORASWAMY REDDY’s case (1 supra) this Court specifically held that an executing Court while directing arrest will have also to fix the period for which the J.Dr should be kept under detention and failure to do so would show that the executing Court cannot be said to have applied its mind to the matter. Thus it can be said that in the present case the impugned order suffers from an illegality inasmuch as the executing Court decided the matter in favour of the D.Hr by placing the burden upon the J.Dr. It can therefore be said that the impugned order calls for interference by this Court and that it should be set aside. 15. The point is accordingly decided in favour of the J.Dr and this revision is allowed and the order of the executing Court is set aside. No costs. It shall be open for the D.Hr to pursue his remedies in execution, if he is entitled to do so under the law. _____________________ N.RAVI SHANKAR,J 18th February, 2011 CVRK [1] 1997 (2) ALD 190 [2] (1980) 2 SCC 360