THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2576 of 2007 Date: 19.01.2011 Between: Ponnapalli Rama Mohana Rao … Petitioner/ Decree holder AND Kukkala Nagaraju and another … Respondents/ Judgment debtors THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.No.2576 of 2007 ORDER: The sole petitioner is the decree holder. He obtained a decree in O.S.No.427 of 2003 for recovery of a sum of Rs.60,000/- on the foot of a pro-note. The judgment and decree in O.S.No.427 of 2003 became final. The decree holder later laid E.P.No.29 of 2006 under Order 21 Rule 37 and 38 C.P.C. seeking for the arrest and detention of the judgment debtors in civil prison. 2. The decree holder stated in the affidavit accompanying the execution petition that the judgment debtors own a house together with a shop bearing No.18/25/2, Mogalthur, West Godavari District and has been earning an income of Rs.5,000/- per month. The decree holder estimated the value of property at Rs.70,000/-. The decree holder further alleged that the judgment debtors are running a copying machine and has been maintaining an STD booth and that the judgment debtors have been deriving income of Rs.6,000/- per month from their business avocation. It is further alleged that the judgment debtors own and possess Ac.0.18 cents of land, out of Ac.1.25 cents in Survey No.768/1, Mogalthur and that the value of the same is about Rs.1,00,000/-. The decree holder contended that the judgment debtors thus own sufficient means to discharge the decretal amount and have failed to honour the decree so much so they are liable to be detained in civil prison. 3. The judgment debtors are father and son. A counter is filed by the judgment debtors denying the contentions of the decree holder. 4. The decree holder examined himself as PW.1 and examined two other witnesses in support of his case. He also marked encumbrance certificate and certified copy of an agreement of sale. As against the evidence on the decree holder’s side, the judgment debtors did not let any evidence. The learned Principal Junior Civil Judge, Narsapur as the executing Court held that the decree holder failed to establish the means of the judgment debtors and consequently dismissed the execution petition. Aggrieved by the same, the present revision is laid by the decree holder. 5. The case of the decree holder is that the judgment debtors have means to honour the decree. Sri K. Chidambaram, learned counsel for the decree holder drew my attention Exs.A.1 and A.2. Ex.A.1 is an encumbrance certificate. The encumbrance certificate was till the end of the calendar year 2004. The very decree in this case was on 26.09.2005. 6. Sri V. Nageshwar Rao, learned counsel for the judgment debtors contended that the judgment debtors do not possess the property covered by Ex.A.1 encumbrance certificate. I agree with the contention of the learned counsel for the judgment debtors that the decree holder should have filed the encumbrance certificate at least till the date of the enquiry in the execution petition or till the date of execution at least instead of filing the encumbrance certificate ending with a period even prior to the decree of the suit. More so, the encumbrance certificate under Ex.A.1 itself would appear to show that the property in an extent of Ac.0.18 cents belonging to the judgment debtors was mortgaged for a sum of Rs.30,000/-. The judgment debtors would not claim that the mortgage was foreclosed. But, they expose the situation to show that the property owned by the judgment debtors by 2004 itself was encumbered. 7. The claim of the decree holder shall be judged in this background. In their counter, the judgment debtors denying the claim of the decree holder that the judgment debtors have means to discharge the decretal amount. Consequently, it is for the decree holder to show that the judgment debtors have means to discharge the decretal debt and has failed to do so. As already pointed out, Ex.A.1 in this regard is not sufficient as it merely shows that the judgment debtors possessed property worth Ac.0.18 cents of land by the end of calendar year 2004 and that the same was encumbered by the mortgage for a sum of Rs.30,000/-. The other document relied upon by the decree holder is Ex.A.2. It is said to be a certified copy of the registered agreement (of sale) dated 31.03.1999. As rightly submitted by the learned counsel for the judgment debtors, the onus is upon the decree holder to establish the means of judgment debtors and that the judgment debtors need not put forth the positive case that they do not have means to discharge the decretal debt. It is the case of the judgment debtors that Ex.A.2 does not establish the title of the judgment debtors over any property. 8. The decree holder examined the Panchayat Secretary of Mogalthur as PW.2. PW.2 deposed that the first judgment debtor had been running an STD booth and a copying machine in his own premises bearing door No.18-35 and that the first judgment debtor had been paying Rs.380/- per annum towards house tax. He also deposed that Kukkala Venkata Mahalakshmi (who perhaps is the wife of the first judgment debtor) is the owner of Ac.0.05 cents of land in RS No.768/1 and that the building of the first judgment debtor adjoins the road. He further accepted that there is no shopping room/rooms in the house of the first judgment debtor. PW.2 further accepted that the revenue records do not show that the judgment debtors own any piece of property in Survey No.768/1. 9. Thus, PW.2 admitted that judgment debtors do not have any agricultural land. The claim of PW.2 that the first judgment debtor owned a building is not fortified by any evidence. The evidence of PW.2 that the first judgment debtor owned a building and that he has been running an STD booth and a copying machine at his house remained more ipsi dixit. I am afraid that the evidence of PW.2 is not sufficient to reach the conclusion that the judgment debtors have means. 10. The decree holder further examined PW.3. PW.3 at the out set would appear to have claimed that the first judgment debtor runs a shop at Mogalthur. He, however, admitted that he did not have any documentary evidence to show that the first judgment debtor has been running an STD booth and has been running a copying machine at his house premises. There cannot be any documentary evidence for the copying machine except written receipts passed by the first judgment debtor, if any, to any of the customers who utilized the services of the copying machine of the first judgment debtor. There could, however, be oral evidence from the persons who got their documents copied at the copying machine or through first judgment debtor. The decree holder did not choose to examine any such person to prove that the first judgment debtor has been running a copying machine. 11. Inasmuch as the claim of the decree holder is that the judgment debtors have been running an STD booth, the decree holder could have produced proof that the judgment debtors have been running an STD booth by producing relevant papers from the telephone department. The decree holder has failed to do so. Thus, in all, the decree holder did not produce any evidence whatsoever in support of his claim that the judgment debtors have possessed some land and a house, that they have been doing business by running an STD booth and have been maintaining a copying machine and that thus they possessed means to honour the decree. Where the decree holder failed to show that the judgment debtors have means to honour the decree, it shall be assumed that the judgment debtors did not have means to pay the decretal amount, in view of their counter. The execution Court, therefore, was perfectly justified in holding that the decree holder failed to establish that the judgment debtors have means to honour the decree and have failed to do so and that the decree holder therefore is not entitled to execute the decree against the judgment debtors by way of arrest and detention of the judgment debtors in the civil prison. There is no error or failure of exercise of jurisdiction by the execution Court. There are no merits in this revision. 12. The civil revision petition is accordingly dismissed. No costs. _______________ K.G. SHANKAR, J Date: 19.01.2011 Isn