IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY SECOND (22ND) DAY OF FEBRUARY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3985 of 2008 Between: Gudivaka Sreenivasa Rao … Petitioner And: Sanaka Basava Rao … Respondent HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition No.3985 of 2008 ORDER: This civil revision petition is directed against the order dated 20.08.2008 in EP No.106 of 2006 in OS No.134 of 2002 on the file of the Principal Junior Civil Judge, Avanigadda, wherein, arrest of the petitioner/JDr was ordered under Order XXI Rule 37 CPC in execution of the decree. 2. Heard the learned counsel for the petitioner/JDr and the learned counsel for the respondent/DHr. Perused the record. 3. The respondent herein obtained a decree against the petitioner/JDr for recovery of an amount of Rs.53,185/-. The respondent herein filed EP No.106 of 2006 in execution of the decree, seeking arrest of the JDr under Order XXI Rule 37 CPC on the ground that in spite of having sufficient means, the petitioner/ JDr is deliberately evading to pay the decree debt. According to the respondent/DHr, the petitioner/JDr is having 90 cents of land in Vekanuru village and when the respondent sought to proceed against the said property in EP No.29 of 2003, a claim petition in EA No.276 of 2003 was filed by the petitioner/JDr through his minor sons and the same was allowed and so, the said EP No.29 of 2003 was accordingly dismissed. The respondent pleads that the petitioner is running a fair price shop and earning Rs.2,000/- per month and also earning Rs.5,000/- per month by way of money lending business and Rs.2.500/- per month from milk business, as he is having three she-buffalos. The respondent/DHr testified as PW.1 about the means of the petitioner/JDr to pay the decretal amount. 4. The petitioner would contend that he is not doing any money lending business and he is physically handicapped and he has no she-buffalos and that he has no means to discharge the decree debt. In the cross-examination, the petitioner/JDr admitted that there was another EP filed against him by another creditor and in the said EP, warrant of arrest was issued against the petitioner and he preferred CRP No.5599 of 2004 and in pursuance of the interim orders granted in CMP No.15520 of 2004, he deposited half of the decretal amount of Rs.13,000/-. He also admits that subsequently, he paid the balance amount also due under the said decree, but says that the payment was arranged by his father-in- law. The said father-in-law of the petitioner/JDr is not examined to show that the JDr has no means and therefore, he made payments on behalf of the JDr. The petitioner/JDr admitted in the counter that he is running a fair price shop, but claims that he is getting only a sum of Rs.300/- to Rs.400/- per month, which is sufficient for his medical expenses. Thus, admittedly, the JDr is running a fair price shop and he discharged the debt due under another decree when warrant of arrest was issued against him. Learned counsel for the petitioner/JDr would contend that simply because the JDr has discharged some other debt, it cannot be presumed that he has got sufficient means to discharge the present decree debt also. The fact that the JDr discharged the other debt, is certainly a valid circumstance to be taken into consideration while assessing the means of the JDr. He has not filed any document to show that he is getting only Rs.300/- to Rs.400/- per month from the fair price shop. The suit was filed in the year 2002 and the decree was passed on 31.10.2002. The petitioner/JDr has not chosen to pay any amount, though eight years have elapsed since passing of the decree. While granting interim stay on 12.09.2008, this Court also not imposed any condition of payment of any amount. The JDr has gained sufficient time of more than eight years since passing of the decree and has not chosen to repay even a portion of the debt. 5. In ‘Jasti Subba Rao vs. M/s Lakshmi General Fiannce Limited[1]’, this Court held that ‘though, petitioner admitted in cross-examination that he has got lorry transport business and simply denying his liability to pay the decree amount, the conduct of JDr is nothing but act of negligence and carelessness to pay the decretal amount’. 6. Learned counsel for the petitioner relied upon a decision in ‘Jolly George Varghese vs. Bank of Cochin[2]’, wherein, the apex Court held that ‘when the JDr subsequent to the date of decree having no means to pay and in the absence of mala fides and dishonesty, arrest and detention is unwarranted.’ 7. In the above case, it was noticed that no investigation was made by the executing Court regarding current ability of the JDr to clear the debt and the mala fide refusal, if any, to discharge the debt. In the present case, it is not as though the JDr has no means at all. Admittedly, he is running a fair price shop and he was able to discharge other debts. The executing Court after recording evidence on both sides duly enquired into the aspect of JDr’s means to pay and held that in spite of having sufficient means, the JDr is evading to pay. The decision cited is therefore, not applicable to the facts of the present case. In the circumstances, it is held that the impugned order directing issuance of warrant of arrest against the petitioner/JDr is not liable to be interfered with, as the impugned order does not suffer from any illegality or irregularity. 8. In the result, the civil revision petition is dismissed. The interim stay granted earlier stands vacated. No order as to costs. __________________ G.V.SEETHAPATHY, J Date: 22.02.2011 bss [1] 2007(6) ALT 638 [2] AIR 1980 SC 470