HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No. 2837 of 2006 Date: -10-2011 Between: Syed Abdul Rahman ……… petitioner And Karur Noor Basha and another …… Respondents HON’BLE SRI JUSTICE K.S. APPA RAO C.R.P.No.2837 of 2006 ORDER: Being aggrieved against the order, dated 14-03-2006 passed in E.P.No.143 of 19999 in O.S.No.43 of 1998 on the file of the Principal Senior Civil Judge, Nandyal, Kurnool District, the present Civil Revision Petition is filed. The revision petitioner is the petitioner/DHr and the respondents are the respondents/JDrs in E.P.No.143 of 1999. The parties hereinafter will be referred to as they are arrayed before the lower Court. 2. The brief facts of the case are as follows: The petitioner/DHr filed a money suit against the respondents and obtained a decree. As the respondents/JDrs failed to discharge the decreetal amount, the petitioner/DHr filed the E.P. under Order 21 Rules 37 and 38 of C.P.C. for arrest and detention of the JDr to the civil prison. Both the JDrs have filed common counter admitting the debt, but pleaded that they are living on daily wages and do not possess any valuable property and they sold out the house to discharge the debts. After contest, the lower Court dismissed the petition, through the order dated 14-03-2006, on the ground that the DHr failed to prove that the JDrs are having sufficient means to discharge the debt. Being aggrieved, the present Civil Revision Petition is filed by the DHr. 3. The learned counsel appearing for the Revision Petitioner/DHr mainly urged that the finding of the lower Court is erroneous on the sole ground that the though the DHr properly established the means of the JDrs, the JDrs failed to discharge their burden. He further urged that the father of the JDrs was having a house and the same was alleged to have been mortgaged and a mortgage decree was passed, and that does not mean that the house is sold, and that the first respondent, being the goldsmith, has been doing business in gold and jewellery, and therefore, he urged to set aside the impugned order. 4. The learned counsel appearing for the respondents/JDrs, while supporting the impugned order, sought for dismissal of the Civil Revision Petition. 5. Now the point for consideration is whether the impugned order, dated 04-03-2002 is sustainable? 6. Admittedly the petitioner is the DHr and he obtained a decree against respondents/JDrs herein. For realisation of the decreetal amount, he filed the E.P. under Order 21 Rules 37 and 38 of C.P.C. for arrest and detention of the JDrs. It is the plea of the DHr in the E.P. that the JDrs are having a residential house at Nandyal, worth about Rs.10 lakhs and that they are getting Rs.3,000/- per month towards rent on the said property and apart from it, they are doing gold business and are getting the income between Rs.15,000/- to Rs.20,000/- each per month and that JDr No.2 is a member of the goldsmith association and therefore, the JDrs have sufficient means to pay the decreetal amount, but purposely avoiding to discharge the debt. 7. Before the lower Court, the petitioner/DHr was examined as PW-1 and got marked Exs.A-1 to A-6, X-1 and X-2. On behalf of the respondents, the respondents/JDrs themselves were examined as RWs.1 and 2 and got marked Ex.B-1. 8. In a petition filed under Order 21 Rules 37 and 38 of C.P.C. for arrest of the JDrs, the burden lies on the DHr to prove that (1) the JDrs are having sufficient means and (2) they are purposely avoiding to discharge the debt. If both the ingredients are proved, the Execution Court is empowered to pass appropriate orders on the said petition. In the aforesaid factual aspect, let us see to what extent the DHr in this case has discharged his burden in proving that the JDrs are having sufficient means to discharge the debt. 9. According to PW-1, the Decree Holder, the JDrs have got a house bearing No.12/62 In Nandyal Town, worth about more than Rs.10 lakhs. In proof of the same, he filed Ex.A-1, demand register extract, issued by the Nandyal Municipality, which shows that the said house stands in the name of one Mohammad Rasool, the father of the JDrs. The same is not disputed by the JDrs also. By filing Ex.A-1 document in support of the admissions made by PW-1 about the legitimate share of the JDrs in the said property, certainly it can be said that the JDrs are having sufficient means. It is also the evidence of PW-1 that the JDrs are goldsmiths and they are having their shop in Nandyal town. Ex.X-2, which was filed by respondent No.2, also reads that Respondent No.2 is a goldsmith and also a member in goldsmith association. 10. To rebut the evidence of PW-1, it is the contention of RWs.1 and 2 that they have disposed of the house property pursuant to the decree passed in O.S.No.37 of 2002 on the file of the Additional Senior Civil Judge (FTC), Nandyal and filed Ex.B-1. As seen from Ex.B-1, one Gaddam Chandra Mohan Reddy filed a suit under mortgage against the JDrs and other family members and obtained a preliminary decree on 29-07-2005. There is no evidence adduced on behalf of the respondents/JDrs with regard to the subsequent events after the preliminary decree was passed in O.S.No.37 of 2002. There is no whisper by the respondents/JDrs that the said property was put to sale etc. Unless the subsequent events that the property was sold and the JDrs have no right in the said property and that they have not benefited monetarily through the said property, are not proved, it cannot be said that they have no means. In the absence of any such evidence, the alleged sale of the property as asserted in the counter of the JDrs cannot be believed. Admittedly the said property was the subject matter of O.S.No.37 of 2002. Unless the said property is sold, it cannot be said that the absolute rights of the JDrs in the said property were transferred to the plaintiffs in O.S.No.37 of 2002. Therefore, the contention of the JDrs that they have no means pursuant to the decree passed in O.S.No.37 of 2002 is of no consequence to absolve the liability under the E.P. Furthermore, when the DHr produced the clinching evidence that the JDrs are the members of the goldsmith association and they are doing gold business besides maintaining a shop, it is for the JDrs to rebut the said evidence. The JDrs have admitted the photographs in Exs.A-3 and A-6 and so they cannot now go back and say that they have no capacity to maintain the shop, which cannot be swallowed by any stretch of imagination. The reason being that no employee working in the shop will sit in the cash counter i.e., the seat of the proprietor, while transacting the business. Therefore, the presence of the JDrs in the shop, as seen in the photos in Exs.A-3 and A-6, clinches the issue that they were transacting the business. Of course there is no cogent proof that they are the owners of the said shop, but the fact remains that their presence in the said shop gives an inference that they are very much concerned with the said shop. 11. Therefore, in view of the aforesaid discussion and the documents in Exs.A-1, X-1 and X-2, the DHr discharged his burden in proving that the JDrs are having sufficient means to pay the E.P. debt and that they are purposely evading the payment. Therefore, the ingredients of Order 21 Rules 37 and 38 of C.P.C. are proved against the JDr for issuing orders thereunder. Accordingly, the impugned order cannot be sustained and the same is liable to be set aside. 12. In the result, the Civil Revision Petition is allowed. The order, dated 14-03-2006 passed in E.P.No.143 of 1999 is set aside. Consequently, E.P.No.143 of 1999 stands allowed. However, two weeks time, from the date of receipt of a copy of this order, is granted to the JDrs to pay the decreetal amount, in default of which the Decree Holder is at liberty to proceed in accordance with law. No order as to costs. _______________ K.S. APPA RAO, J Date: -10-2011 YCR