THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.2464 of 2006 Date:18.11.2010 Between: Mohammed Yousuf ……….. Petitioner/JDR. And Mohammed Buran ……. Respondent/DHR. THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR C.R.P No.2464 of 2006 ORDER: The Civil Revision Petition is directed against the order dated 10.3.2006 in E.P.No.32 of 2005 in O.S.No.2183 of 1997 on the file of V Senior Civil Judge, City Civil Court, Hyderabad. The petitioner herein is the judgment debtor. The respondent herein is the plaintiff-decree holder. The respondent obtained a decree in O.S.No.2183 of 1997 for a sum of Rs.87,500/- with subsequent interest at the rate of 9% per annum from the date of suit till the date of realization. Then the decree holder filed E.P.No.116 of 2003 for arrest of the petitioner/JDR. The said E.P was dismissed for default on 22.6.2004. Then the decree holder field E.P.No.32 of 2005 and along with the said E.P, he filed an affidavit stating that in spite of his repeated requests, the petitioner/JDR did not pay any amount to him and that the petitioner/JDR is contemplating to go to Gulf and if he is allowed to leave the country, he cannot pay the decretal amount. The petitioner/JDR herein filed a counter denying the said allegations. However, when the said E.P was posted on 10.3.2006, the respondent/decree holder was present. The petitioner/JDR was called absent even at 3.20 p.m and he was set exparte then the affidavit filed by the respondent/decree holder was taken into consideration, the E.P was allowed and warrant issued against the petitioner/JDR on payment of process. Challenging the same, the petitioner filed the present Civil Revision Petition. This Court, on 24.5.2006, ordered stay of all further proceedings in E.P.No.32 of 2005 in O.S.No.2183 of 1997, on condition of the petitioner/JDR depositing half of the decretal amount within one month from the date of receipt of a copy of that order. The learned counsel for the petitioner/JDR submits that the petitioner/JDR has complied with the said order and deposited half of the decretal amount. No representation for the respondent/DHR. The main contention of the learned counsel for the petitioner/JDR is that the lower Court has not taken any evidence to satisfy itself about the truth or otherwise of the allegations made by the respondent/decree holder. It is also his submission that there is no proof in the allegation that the petitioner/JDR was leaving the country and no documentary evidence was adduced in support of the claim of the respondent/decree holder. The only point that arises for consideration is whether the lower court was justified in issuing order of arrest against the petitioner/JDR. Proviso to Section 51 (e) of CPC envisages that before committing a person to prison, the Execution Court shall give an opportunity of showing cause why he should not be committed to prison, and if the Court is satisfy that the judgment debtor is likely to abscond or leave the local limits of jurisdiction, it may order the arrest of the judgment debtor. In this case, the respondent had filed an affidavit along with the E.P and it appears that the said affidavit was taken as the evidence of respondent/decree holder. Admittedly, the petitioner was absent and there was no representation for him. Therefore, I do not find any illegality or irregularity in the order passed by the lower Court. The provision to Section 51 CPC as follows: “51. Powers of Court to enforce execution:--Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest ad detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has had since the date of the decree, the 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, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.” As seen from the affidavit filed by the respondent/DHR though it is alleged that the petitioner/JDR herein is contemplating to go to Gulf and failed to pay the amount but as far as the means to pay the decretal amount is concerned, the respondent is silent about the same. In the counter affidavit filed by the petitioner, the petitioner had categorically mentioned that he is earning only an amount of Rs.5,000/- per month, which is hardly sufficient to maintain his family. Anyhow, during the course of arguments, the learned counsel for the petitioner/JDR submitted that the petitioner/JDR is ready to pay the decretal amount in installments at the rate of Rs.10,000/- per month provided some breathing time is given to him for commencing the installments. The case of the petitioner/JDR is that he is a Carpenter. Having regard to the facts and circumstances of the case, the impugned order stands set aside, subject to the following terms and conditions. (i) The petitioner shall pay the total decretal amount in installments at the rate of Rs.10,000/- per month till the total decretal amount is satisfied. (ii) He is permitted to pay the 1st installment on or before 10th day of January 2011 failing which the lower Court may proceed with the E.P in accordance with law. The Civil Revision Petition is disposed of. No order as to costs. ______________________ Justice B.Chandra Kumar Date:18.11.2010 mrb