IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD WEDNESDAY, THE TWENTY SEVENTH DAY OF JULY TWO THOUSAND AND ELEVEN Present HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2159 of 2010 Between: MA Hafeez .. Revision Petitioner AND Smt. Shanthamma & 4 others .. Respondents The Court made the following: HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2159 of 2010 ORDER: Heard Sri N. Ashok Kumar, learned counsel for the revision petitioner and Sri L. Harish, learned counsel for respondents 1 to 4. 2. The Civil Revision Petition is directed against the order, dated 26.10.2009, in E.P.No.12 of 2001 in O.P.No.127 of 1987, on the file of the Motor Accidents Claims Tribunal-cum- District Judge, Mahabubnagar. 3. The execution petition was filed by the wife and children of Karrenna, who was involved in a motor accident, against the owner and driver of the lorry in question for execution of the decree passed by the Motor Accidents Claims Tribunal in O.P.No.127 of 1987 granting a compensation of Rs.50,000/- with interest and costs against the owner of the lorry. The decree holders requested the decree debt to be realized by the arrest and detention of the first judgment debtor in civil prison and the first judgment debtor remained ex parte before the executing Court. The decree holders examined P.Ws.1 and 2 and marked Exs.A-1 to A-4 during the enquiry and the executing Court found that Exs.A-1 and A-2-true copies of the Pahanies for the periods 2006-2007 and 2008-2009, Ex.A-3-true copy of the R.O.R and Ex.A-4-Encumbrance Certificate showed that the first judgment debtor had income from his lands in spite of which he did not pay the execution petition amount of Rs.1,33,132/-. Therefore, issuance of arrest warrant was directed by the executing Court against which the first judgment debtor approached this Court with this revision. The first judgment debtor contended that the execution petition was barred by time and the first judgment debtor had no properties. The executing Court was criticized as not conducting any enquiry before passing the impugned order and the decree holder ought to have proceeded against the properties of the judgment debtor and not against the person of the judgment debtor by way of arrest. 4. This Court passed an interim order directing deposit of Rs.50,000/- within the time specified on which the impugned order shall stand suspended and after taking further time, it was represented by the learned counsel for the revision petitioner that the said amount was deposited to the credit of the matter. The decree holders filed C.R.P.M.P.No.6839 of 2010 requesting to vacate the stay so granted subject to the deposit of Rs.50,000/-. Both the learned counsel stated that the amount of Rs.50,000/- is still in deposit to the credit of the matter and is not withdrawn. 5. The point for consideration is whether the impugned order of arrest is liable to be interfered with. 6. The execution petition was filed for recovery of a sum of Rs.1,33,132/- from the first judgment debtor, owner of the lorry, and the first judgment debtor appeared to have remained ex parte before the executing Court. The first judgment debtor did not complain of having not received any notice of execution and, therefore, the executing Court cannot be faulted for proceeding with the enquiry ex parte. However, when it comes to proof of the means of the first judgment debtor to pay the decree debt or a substantial portion of the same from the date of the decree till the date of order of arrest is concerned, the executing Court referred to the true copies of Pahanies, a copy of ROR and the encumbrance certificate, but it is not seen from the impugned order as to what was the extent of the property covered by Exs.A- 1 to A-4 claimed to be belonging to the first judgment debtor and in his possession and it was also not clear from the impugned order as to what probable income the first judgment debtor would have realized from the said lands. Though the executing Court stated that the first judgment debtor has income from his lands, the quantum of such income being sufficient to discharge the decree debt or a substantial portion of the same during the relevant period was not specified in the impugned order. 7. The presence of sufficient means is a fundamental prerequisite to interfere with the personal property of the judgment debtor by way of execution of a decree by arrest and detention of the judgment debtor in civil prison and, therefore, it requires a comprehensive and satisfactory enquiry and finding before any such extreme step can be ordered. Though the first judgment debtor did not appear before the Executing Court, he pleads herein that Exs.A-1 to A-4 do not confer any title on the petitioner concerning the ancestral family properties. So, it is to be verified as to whether the property covered by Exs.A-1 to A-4 exclusively belongs to the first judgment debtor or his joint family properties in which other persons are interested. Interests of justice, therefore, shall be best served by permitting the first judgment debtor to place his version also before the executing Court to enable the executing Court to come to an appropriate conclusion in this regard before taking any extreme step of ordering arrest and detention in prison. The claim of the first judgment debtor that the execution petition is barred by time can also be raised before the executing Court and decided on merits and under the circumstances, it appears just and equitable to set aside the impugned order and remand the matter to the executing Court for fresh enquiry giving an opportunity to the first judgment debtor. Insofar as the amount in deposit is concerned, as the decree stands as of now and as the learned counsel for the decree holders represented that even an appeal against the award by the first judgment debtor failed on merits, there can be no legal or factual hindrance from permitting the decree holders from withdrawing the amount in deposit to the credit of the matter, pending further enquiry into the execution petition. 8. Accordingly, the order, dated 26.10.2009, in E.P.No.12 of 2001 in O.P.No.127 of 1987, on the file of the Motor Accidents Claims Tribunal-cum-District Judge, Mahabubnagar, is set aside and the execution petition is remitted back to the said Tribunal for an enquiry after giving a reasonable opportunity to the first judgment debtor and determination on merits in accordance with law. In the meanwhile, the decree holders are permitted to withdraw the amount of Rs.50,000/- in deposit to the credit of the matter without furnishing any security. In view of the length of time for which the decree holders were unable to successfully execute their decree, the executing Court shall expeditiously dispose of the execution petition on merits within a maximum period of six (6) months. The Civil Revision Petition is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J Date: 27th July, 2011 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2159 of 2010 Date: 27th July, 2011 KL