IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD TUESDAY, THE FIFTEENTH DAY OF FEBRUARY TWO THOUSAND AND ELEVEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.2097 OF 2009 Between : M.Narapa Reddy .... PETITIONER A N D M.Ramakrishna Reddy. …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO.2097 OF 2009 O R D E R: This Civil Revision Petition, under Section 115 of the Code of Civil Procedure, 1908 (for short, ‘CPC’) is directed against the order, dated 20.03.2009, in E.P.No.729 of 2007 in O.S.No.972 of 2002 on the file of the Principal Junior Civil Judge, Anantapur, whereunder and whereby, the execution petition filed for realization of the decreetal amount by way of ordering arrest and detention of respondent/judgment debtor in civil prison, was dismissed on the ground that the petitioner/decree holder failed to establish that the respondent/judgment debtor has means to pay the decreetal amount. 2. Heard the learned counsel for the petitioner. None appears for the respondent. 3. Learned counsel for the petitioner contended that the respondent is doing business in Cheeni and paddy apart from groundnuts; that the evidence of P.Ws.1 and 2 would clearly go to show that the respondent has means to pay the decreetal amount; that the respondent wantonly and willfully evading to pay the decreetal amount and hence, he prays to set aside the impugned order. 4. Section 51 read with Order XXI Rule 37 CPC empowers the Court to send judgment debtor to civil prison when he willfully does not honour the decree with an intention to neglect or evade to pay the decreetal amount. The object of this provision is to afford protection to honest debtors who are capable of paying their dues for reasons beyond this control and who have not committed any act of bad faith. The test is whether the debtor is willing to pay in spite of his means to pay. In considering an application for arrest of a judgment debtor under Order XXI Rule 38 CPC, two requirements are to be established by the decree holder viz., the judgment debtor has sufficient means to pay the decreetal amount and that he is wantonly or willfully avoiding to pay the same. If these two ingredients are satisfied, then the judgment debtor is liable to be sent to civil prison. The evidence of PWs.1 and 2 would clearly go to show that the respondent is doing business in Cheeni fruits and paddy apart from groundnuts. When the respondent is doing business and getting income there from, it is reasonable to infer that he was getting some income from the business. From the evidence adduced by decree holder, it can be safely inferred that the respondent has sufficient means to pay the decreetal amount. 5. Coming to the second aspect, admittedly when the suit was pending, the respondent transferred the land in the name of his wife with a view to avoid the liability. No reasons are assigned for such transfer. This act of judgment debtor can be said to delay the execution of decree that may be passed against him. Therefore, except the oral evidence of the respondent, there is no other acceptable evidence to show that he was not having sufficient means and he was not evading to pay the decreetal amount. The evidence of R.W.2 cannot be accepted because he is closely associated with R.W.1. The respondent also filed Insolvency Petition, which was also dismissed. This act of the respondent would clearly go to show that he is bent upon not to pay the decreetal amount. Therefore, if these two circumstances are taken into consideration, it can be said that the respondent is not willfully paying the decreetal amount, though he is having sufficient means. Therefore, the trial Court ought to have allowed the petition and ordered detention of the respondent in civil prison. Hence, the impugned order is liable to be set aside. 6. Accordingly, the Civil Revision Petition is allowed setting aside the order, dated 20.03.2009 in E.P.No.729 of 2007 in O.S.No.972 of 2002 on the file of the Principal Junior Civil Judge, Anantapur. The trial Court is directed to send the respondent to civil prison for a period of six months on payment of batta by petitioner. However, this order is kept in abeyance for a period of three months to enable the respondent/judgment debtor to pay the decreetal amount together with costs and interest. If for any reason, the respondent fails to pay the amount on or before 15.05.2011, the order of this Court shall be given effect to. There shall be no order as to costs. _______________ K.C.BHANU, J FEBRUARY 15, 2011. YVL