IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE THIRD DAY OF SEPTEMBER TWO THOUSAND AND TEN PRESENT HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2375 OF 2008 Between: Rangam Eswaraiah Naidu ..... Petitioner/Respondent AND Kalvapalle Ramamohan Naidu ..... Respondent/Respondent The Court made the following: THE HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2375 OF 2008 ORDER: The Civil Revision Petition is directed against the order in E.P.No.254 of 2006 in O.S.No.49 of 2003, on the file of the Principal Junior Civil Judge, Kadiri, Anantapur District, dated 08.05.2008. 2. The respondent herein filed the Execution Petition for realization of the decree debt of Rs.90,281/- along with the costs of execution by way of arrest and detention in civil prison of the revision petitioner herein under Order XXI Rules 37 and 38 of the Code of Civil Procedure. The Execution Petition was resisted by the revision petitioner contending that he got two sons and got only 80 cents of land towards his share. He also claimed that he sustained loss in the arrack business earlier and the bore-wells sunk in the land by spending about Rs.60,000/- failed. He also claimed to be suffering from heart ailment and to be under continuous medical treatment and has no means to pay the Execution Petition amount. 3. During the enquiry into the Execution Petition, the Executing Court examined P.Ws.1 and 2 and R.Ws.1 and 2 and marked Exs.B1, X1 and X2. 4. The Executing Court pronounced the impugned order referring to the rival contentions and evidence of the parties and noted that the claims of P.W.1, the decree holder were corroborated by the Tahsildar of N.P. Kunta, examined as P.W.2, who produced the IB Register and No.2 Account. The Tahsildar’s evidence was that the revision petitioner has Acre 1.33 cents in S.No.251, Acre 0.59 cents in S.No.252, Acre 0.27 cents in S.No.372/2, Acre 0.16 cents in S.No.627, Acre 0.60 cents in S.No.420, Acre 0.01 cent in S.No.249/1, Acre 0.05 cents in S.No.355, Acre 0.10 cents in S.No.360/1, Acre 0.59 cents in S.No.414/2, Acre 0.05 cents in S.No.356, Acre 0.05 cents in S.No.354, Acre 0.12 cents in S.No.415, Acre 0.07 cents in S.No.357 and Acre 0.38 cents in S.No.417/1. The relevant entries were marked as Exs.X1 and X2 and the Judgment Debtor/Revision Petitioner as R.W.1 filed Ex.B1-Job Card, which did not contain the date of its issue. The Panchayat Secretary who issued Ex.B1 was not examined and the Executing Court, therefore, placed no reliance on the self- serving evidence of the Judgment Debtor as R.W.1 and his relative as R.W.2 and it also referred to the admission of R.W.2 that he does not know about the financial status of the Judgment Debtor or the survey numbers of the lands owned by the Judgment Debtor or whether the Judgment Debtor ever underwent treatment in any hospital. The Executing Court concluded that the evidence clearly showed the revision petitioner to be having Acres 4.40 cents of land in which he is raising groundnut, green gram and red gram crops and the Executing Court also noted that the lands in S.Nos.360/1, 357, 451 and 354 are wet lands. As the ownership of the lands was not denied by the Judgment Debtor, and as the Judgment Debtor did not produce any evidence to show that the bore-wells failed, or that he sustained loss in arrack business, or that he did not raise any crops in the lands, the Executing Court concluded that the Judgment Debtor has the means to pay the Execution Petition amount and directed the Judgment Debtor to pay the same in default of which he will be committed to civil prison. 5. The Judgment Debtor challenges the said order in this revision contending that the mandatory provisions of Order XXI Rule 37 of the Code of Civil Procedure are violated by the impugned order and sufficient means to satisfy the decree do not exist for the Judgment Debtor. The lands are very small in extents and do not give any yield sufficient to satisfy the decree and hence, the Judgment Debtor desired that the impugned order be reversed. 6. Sri M. Jayaram Reddy, learned counsel for the revision petitioner and Sri P. Ravi Kiran, learned counsel for the respondent were heard. 7. The point for consideration is whether the Judgment Debtor had sufficient means to pay the decree debt and was hence, liable for arrest or detention in civil prison for realization of the decree debt. 8. The mandatory provisions of Section 51 of the Code of Civil Procedure prescribe that before ordering detention in civil prison of a Judgment Debtor after arrest in execution of a decree, the Judgment Debtor should be given an opportunity of showing cause as to why he should not be committed to civil prison and the Court also should be satisfied for reasons recorded in writing that the Judgment Debtor has or has had since the date of the decree, means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. The corresponding provisions in Order XXI Rules 37 and 40 of the Code of Civil Procedure also mandate that appropriate opportunities should be given to the Judgment Debtor in this regard. In this background, it is seen that the Executing Court passed the impugned order only after full-fledged enquiry giving every opportunity to both the parties to place their oral and documentary evidence before the Court. The evidence of Tahsildar as P.W.2 with reference to the revenue registers which are maintained in the ordinary and regular course of official business needs to be preferred than the self-serving and interested claims of the parties themselves and the evidence of the official is clear that the Judgment Debtor owns a total extent of Acres 4.40 cents of land in different survey numbers specified by him and referred to in Exs.X1 and X2. Irrespective of the proof or otherwise of Ex.B1-Job Card said to have been issued by the Panchayat Secretary, the executing Court has noted that the Judgment Debtor is not denying the ownership of the lands referred to by P.W.2. If the Judgment Debtor has such an extent of land, it is clear that he has sufficient realizable assets from which the whole decree or a substantial part thereof could have been satisfied, had he intended to do so and the very failure to apply such realizable assets towards satisfaction of the decree till the Execution Petition shall amount to, if not refusal, neglect to pay the decree debt or a substantial portion thereof. The protection under Order XXI Rule 37 of the Code of Civil Procedure read with Section 51 thereof was thus sufficiently given to the Judgment Debtor and in view of the positive evidence before the Executing Court, the Executing Court cannot be considered wrong in directing the Judgment Debtor to pay the amount or else face detention in civil prison. Whether the Judgment Debtor was raising any crops therein or not, and whether he ever sustained any loss in arrack business or not and whether any bore-wells have failed or not, are not questions which are germane for the purpose, when once the ownership of Acres 4.40 cents of land with the Judgment Debtor is proved and it was not shown that the realizable saleable interest in the lands is in any way not sufficient to satisfy the decree or a substantial portion thereof. Hence, the impugned order has to be upheld. 9. However, the Civil Revision Petitioner/Judgment Debtor was directed to deposit 1/3rd of the decreetal amount to the credit of the said E.P. within a period of three weeks from 19.06.2008, which direction was said to have been complied with. Hence, Sri M. Jayaram Reddy, learned counsel for the revision petitioner submitted that in the event of the Court not agreeing with the submissions against the impugned order, the Judgment Debtor may be granted a reasonable time to pay the remaining portion of the decree debt and stated that the realization of crops in the lands owned or cultivated by the Judgment Debtor will be after two or three months from now. Therefore, it would be in the interests of justice to grant time till the end of December, 2010, to the Judgment Debtor to pay the balance of the decree debt including the costs of execution and have the decree fully satisfied. In case of default, the Executing Court can proceed further with the execution, of course subject to compliance with the mandatory provisions of Order XXI Rule 40 of the Code of Civil Procedure. 10. Accordingly, the Civil Revision Petition is dismissed without costs but the Revision Petitioner/Judgment Debtor is granted time till 31.12.2010 for payment of the balance of the decree debt and costs of execution to have full satisfaction of the decree recorded by then; in default, the Executing Court can proceed with further steps in execution subject to the mandatory provisions of Order XXI Rule 40 of the Code of Civil Procedure. 11. The Civil Revision Petition is ordered, accordingly, without costs. _____________________ G. BHAVANI PRASAD, J September 03, 2010 KL HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.2375 OF 2008 September 03, 2010. KL