THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.437 of 2007 Date: 24.2.2011 Between: Kanugula Lakshmi Narayana ………..Petitioner And Palakodeti Seshu Kumar and others ………..Respondents. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.437 of 2007 ORDER: This revision is directed against the order dated 18.12.2006 passed in E.P.No.8 of 2003 in O.P.No.213 of 1989 on the file of the Court of the District Judge, Srkakulam. There must be some justification in the plea of any party to prevent the execution proceedings. When a party, without any justification and without any iota of truth in its contentions has been going on preventing the execution of the decree by invoking one provision or the other and thereby depriving the fruits of the decree holders, it is nothing but amounts to misuseing the process of the Court. I have no doubt to come to a conclusion that the petitioner herein, who is the judgment debtor, has been misusing the process of the Court in one way or the other. The brief facts of the case are as follows: The respondents herein were claimants in O.P.No.213 of 1989. The petitioner herein is the owner of the Suziki T.V.S, bearing No.AAS 3004. He being a Teacher did not bother to get renew the insurance policy and as such the vehicle was not insured on the date of the accident in which the husband of the 1st respondent herein and father of the other respondents 2 & 3 and son of the 4th respondent, died in a motor accident. The Tribunal, having considered the material on record, passed a decree for an amount of Rs.3,00,000/- on 1.9.1989. Since the J.Dr failed to pay the decretal amount, the respondents herein filed E.P.No.4 of 1993 for arrest of the J.Dr. Ultimately, the said E.P was dismissed by orders dated 28.2.1994. Then they filed E.P.No.4 of 1994 for attachment of the salary of the petitioner herein. It seems that the attachment was effected from June 1994 to July 1996 and subsequently, as the total amount was not realized, the respondents herein filed E.P.No.8 of 2003 seeking arrest of the petitioner herein for realization of the remaining total amount of Rs.7,48,810/-. They had specifically averred that though the petitioner has got sufficient means to pay the amount, he did not pay the amount, they had taken a specific plea that the monthly income of the petitioner herein was ranging from Rs.15,000/- to Rs.16,000/- per month and that he has considerable movable and immovable properties. On behalf of the petitioner, he himself was examined as R.W.1 and no documents were marked on his behalf. On behalf of the respondents, the 1st respondent was examined as P.W.1 and Exs.B1 to B6 were marked. P.W.1 had categorically deposed that the petitioner herein though having sufficient means to pay the decreetal amount is avoiding to pay the same. She had also categorically stated that the petitioner was earning a salary of Rs.15,000/- per month and also having movable properties i.e., gold and silver articles worth Rs.3,00,000/- and that he is having topes and landed properties worth Rs.5,00,000/-. On behalf of the petitioner, time was taken on the pretext of settling the matter out side the Court. However, no compromise could be reached between the parties and ultimately, an arrest warrant was issued against the petitioner herein. Challenging the same, the present Civil Revision Petition is filed. Sri V. Ravinder Rao, the learned counsel for the petitioner submits that the petitioner was working as a Government Teacher and that except the salary, he had no other income and that after his retirement, he had performed his daughters’ marriage and at present, except pension, he has no other source of income and that burden lies on the decree holders to prove that he has sufficient means to satisfy the decreetal amount and since then the respondents herein failed to discharge their burden by any cogent evidence, the impugned order is liable to be set aside. In support of his contention, he relied on the judgment in case between JOLLY GEORGE VARGHESE AND ANOTHER, APPELLANTS V. THE BANK OF COCHIN, RESPONDENT.[1] In that case, all the immovable properties of the judgment debtors were attached for the sale in discharge of the debts, receiver was appointed for the management of the property under the attachment. The judgment debtors had no power to alienate the properties and then a warrant of arrest was issued. In the above circumstances, the Court examined the right to liberty of the judgment debtor and explained the meaning of the words, “means to pay the amount of decree”. The Apex Court observed as follows: “The words which hurt are “or has had since the date of the decree, the means to pay the amount of the decree” this implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Art.11 (of the Covenant) and Art.21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree.” In the circumstances, the above matter was remanded to the lower Court with a direction to readjudicate on the present means of the debtors vis-à-vis the present pressures of their indebtedness. The facts of that case are entirely different. In that case, all the properties of the judgment debtors were already attached and the judgment debtors had no power to alienate the properties and they became penniless as on the date of filing of the E.P., and in the above peculiar circumstances, the Apex Court ordered that an order of arrest at that juncture is not justified and then again the Supreme Court remanded the matter to the lower Court for the purpose of readjudication. Therefore, the facts of that case appears to be different. Sri V. Ravinder Rao has also relied on another judgment in case between K. VIJAYAKUMAR V. N. GURURAJA RAO[2]. In that case, the judgment debtor has taken a specific plea that he was working as an officer in Sangameswar Grameena Bank and getting a sum of Rs.15,000/- to Rs.16,000/- towards salary and that the decree holder ought to have filed an application for attachment of the salary of the judgment debtor and that only with an intention to harass the judgment debtor, the decree holder has filed the E.P., seeking arrest of the judgment debtor. This Court having referred to the several judgments of this Court, particularly, after referring to the judgment in KALINDINDI RAMA RAJU V. VIJAYA BANK[3], wherein certain guidelines were formulated, observed that the Executing Court should be satisfied that since the date of decree, the judgment debtor, in spite of having substantial means, has refused to pay the same. In that case, the judgment debtor himself filed a memo before the Court requesting the Court to attach his salary instead of ordering for detention in the civil prison. It has to be seen that instead of availing the other modes of execution of the decree, the decree holder had straight away filed an application for arrest of the judgment debtor in that case. Therefore, the facts of that case appears to be not applicable to the facts of the case on hand. Reliance is also placed on the judgment in case between T. DORASWAMY REDDY V. K. KODANDA NAIDU[4], wherein it was observed that the burden lies on the decree holder to prove that the judgment debtor has no means to pay the amount. In that case, except oral version of the decree holder, there was no other material before the Court. In that case, when there was a direction to deposit 1/4th of the decretal amount, at a subsequent stage, it was alleged that he did not deposit another 1/4th of the decretal amount as per the earlier directions of the Court. There cannot be any dispute with regard to the principle laid down in that case, but each case has to be decided on its own facts and circumstances. The last submission of the learned for the petitioner is that now the petitioner has retired from service and that he has performed the marriages of his daughter, with the amount, he received from his retiremental benefits. The 1st decree holder, who was examined before the lower Court, had categorically deposed that the petitioner was working as a Teacher in Z.P.High School and that he was getting a salary of Rs.15,000/- per month and that he is having the slabed house and the cost of that house is about three lakh and that he is having other topes and landed property worth about five lakh, besides gold and silver articles. She was cross-examined at length but nothing has been elicited to discredit her testimony. According to P.W.1 all the children of the petitioner/J.Dr are minors. As seen from the documents filed by the petitioner herein, he has not furnished the particulars with regard to the amounts received by him towards his retiremental benefits, after his retirement. Though he has filed certain medical record before the lower Court, he has also not given the particulars of his daughters, whose marriages, he claims to have performed, or as to when he performed those marriages and how much amount was incurred by him for performing those marriages. As on the date of the passing of the order, the judgment debtor was in service. According to P.W.1, he was getting a salary of Rs.15,000/- to Rs.16,000/- per month and admittedly, he has retired from service. Admittedly, he has not paid a single pie towards the E.P amount though he has received considerable amount towards his retiremental benefits. It was obligatory on the part of the petitioner to furnish the total amount received by him towards his retiremental benefit. Non- furnishing of those particulars and not paying a single pie from that amount to the respondent/decree holder shows the malafide intention of the petitioner. He has been dragging on the matter on the pretext or other. I am satisfied that the evidence on record clinchingly establishes that the petitioner has sufficient means to pay the decretal amount and in spite of the same he has been trying to avoid the same one pretext or other. Since it is clear that having sufficient means, the petitioner has intentionally failed to pay the amount. In view of the same, I do not see any merits in the revision. Accordingly, the Civil Revision Petition is dismissed. No order as to costs. ______________________ Justice B.Chandra Kumar Date:24.2.2011. mrb [1] AIR 1980 SUPREME COURT 470 [2] 2004 (3) ALD 702 [3] 2001 (2) An.WR 184 (AP) [4] 1997 (2) ALD 190