THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP Nos. 3880 and 4216 of 2002 Date of Judgment: 30.9.2011 Between: G. V. Subba Lakshmi …Petitioner and Pusvvada Panduranga Rao ..Respondent THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP Nos. 3880 and 4216 of 2002 COMMON ORDER: Parties are same in both these revision petitions, which arise out of the same decree in O.S.No. 1129 of 1998 on the file of the I-Addl. Junior Civil Judge, Ongole. CRP No. 4216 of 2002 is filed against the order dated 31.12.2001 in EA No. 899 of 2001 filed under Order 21, Rule 40 of the Code of Civil Procedure whereby the respondent/judgment debtor was declared as having no means to pay the decretal amount. Consequently EP No. 326 of 1999 was dismissed, against which CRP No. 3880 of 2002 is filed. The total amount which is subject matter of the execution petition is about Rs.44,000/-. The suit filed by the revision petitioner/decree holder on the basis of promissory note was decreed on 8.3.1999 and when the said decree was put into execution, the respondent/judgment debtor had come up with EA No. 899 of 2001 for a declaration that he has no means to pay the decretal amount. Evidence of judgment debtor as well as decree holder was recorded by the executing court and it came to the conclusion that though the judgment debtor sold his shop No. 307 at Bapuji complex and though he received Rs.1,60,000/- out of the said sale, the said sale being of 1996 and the decree having been passed in the year 1999, the executing court has not taken cognizance of the sale consideration received by the judgment debtor. The executing court also found that the house in which the judgment debtor is residing belongs to the mother of the judgment debtor and consequently it came to the conclusion that the judgment debtor has no means nor properties to satisfy the decree. In these revision petitions, the respondent, though served has not entered appearance. Heard learned counsel for the revision petitioner who submits that the approach of the executing court is wholly erroneous and he relies upon the admission of judgment debtor in his evidence that though he claims that he sold the shop in 1996, admittedly he carried on the business in the very same shop till 1999 i.e., till the decree was passed in the suit. The learned counsel also submits that the court below has not kept in mind and has not enquired as to whether the sale of the said property by the judgment debtor was with a view to defeat the decree and as such was an attempt to conceal or remove the property from the process of the court and places reliance upon the proviso (a) (ii) of Section 51 of the Code of Civil Procedure and he further submits that the court below should have enquired into the said aspect as to whether the aforesaid sale was made by the judgment debtor with a view to obstruct or delay the execution of the decree. The learned counsel also submits that in the cross-examination the judgment debtor as P.W.1 has categorically stated that he has not filed any petition before any Judge or Magistrate that he has no means to engage an advocate nor has requested the court to appoint an advocate. He also submits that there are a number of cases pending against the judgment debtor including a criminal case and as such his plea that he has no means to pay the decretal amount is neither bona fide nor justified. Though the judgment debtor claims to have sold the shop for Rs.1,60,000/-, in fact, he has received a total sale consideration of Rs.12.00 lakhs which is said to be deposited in the name of the wife of the judgment debtor at Vijayawada with an intention to defeat the creditors. The decree holder who was examined as R.W.1 in the above EA has, no doubt, spoken of the aforesaid, but no evidence was produced by the decree holder to substantiate that the sale consideration was deposited in the name of the wife of the judgment debtor. However, keeping in view the facts and circumstances of the case and the admissions of the judgment debtor that he carried on the business upto 1999 in the very same shop which he claims to have sold in 1996, ought to have been taken into consideration by the executing court while assessing the plea of the judgment debtor that he has no means to satisfy the decree. In that view of the matter, the impugned order in EA No. 899 of 2001 is set aside and the said EA shall stand remitted to the executing court for fresh enquiry with liberty to both the parties to lead further evidence, if they are so advised. Consequent upon setting aside the order in EA No. 899 of 2001, the order dismissing EP No. 326 of 1999 also stands set aside and the said EP also shall stand restored to the file of the executing court. The executing court shall re-consider EA No. 899 of 2001 afresh and on the basis of the evidence which the parties may produce, pass appropriate orders in accordance with law. Both the revision petitions are disposed of accordingly. No costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 30.9.2011 KR