Sri J.v.v.satyanarayana Murthy, M.a., L L.m.,

E.P. NO.34/11 IN O.S. No.280/20041/6

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, CHILAKALURIPET.

PRESENT: - SRI JVV SATYANARAYANA MURTHY., M.A., LL.M.,

PRL. JUNIOR CIVIL JUDGE, CHILAKALURIPET.

Friday, the 28th day of March, 2014

E.P. No.34 / 2011

IN

O.S. No.280 / 2004

BETWEEN: Grandhi Hanumantha Rao,… Petitioner/D.Hr

and

Tavva Srinivasa Rao,… Respondent /J.Dr

This petition is coming on 26.03.2014 before me for final hearing in the presence of Sri A. Pratap Kumar, M. Vamsi Krishna, Advocates for

Petitioner/D.Hr and Sri M.V. Krishna, Advocate for the Respondent/J.Dr and having stood over till this day for consideration, this Court delivered the following:

ORDER

The Decree Holder (hereinafter called as D.Hr) filed this

Execution Petition against the Judgment Debtor (hereinafter called as

J.Dr) for realization of sum of Rs.1,18,653/- by way of arrest and detention of the J.Dr in to civil prison in accordance with the provisions

U/o.21 R.37 & 38 of Civil Procedure Code, 1908 (hereinafter called as

C.P.C).

2) The D.Hr filed his affidavit along with Execution Petition complying the provisions of U/o.21 R.11-A of CPC. The brief averments in the affidavit are as follows:-

Prior to filing of the Execution Petition, several times the D.Hr asked the J.Dr to discharge the decretal amount but the J.Dr though he was having capacity to discharge the decretal amount, did not discharge the same and not responded positively. Hence he prayed this court to arrest the J.Dr in accordance with the provisions U/o.21

R.38 of CPC and to realize the decretal amount by sending him to the civil prison.

E.P. NO.34/11 IN O.S. No.280/20042/6

3)On receipt of the show cause notice U/o.21 R.37 of CPC, the

J.Dr appeared before this court and filed his counter. The brief averments in the counter are as follows:-

He sustained heavy loss in oil business and the State Bank of

India, Chilakaluripet branch authorities conducted auction of all his properties and thereafter he became pauper. He has to maintain his wife, two children and old-aged mother and he is getting Rs.4,500/- per month as a salary as a clerk in Ramya Traders, Chilakaluripet. He further submitted that he has no capacity to pay the decretal amount.

He further stated that the D.Hr did not follow the due procedure laid down U/s.51 of CPC and as such the present petition may be dismissed.

4)After filing of the counter, this court conducted enquiry as required U/o.21 R.40 of CPC. During the course of enquiry, the D.Hr was examined as PW1 and no document was marked on his behalf. On the other hand the J.Dr did not turn up to adduce evidence on his behalf. He reported that he is not having any evidence on his behalf.

5) Heard both sides.

6)The learned counsel for the D.Hr argued that the J.Dr was doing business in oil and though he was having capacity to discharge his liability by paying the decretal amount to the D.Hr but he intentionally avoided to pay the decretal amount and as such the present petition may be allowed.

7)On the other hand, the learned counsel for the J.Dr argued that all the properties of J.Dr were auctioned by the State Bank of

India, Chilakaluripet branch authorities and the same was admitted by the D.Hr and as such it is clear that there are no means to the J.Dr to pay the decretal amount. The evidence of PW1 itself shows that he failed to prove the means of J.Dr and as such the present petition may be dismissed.

8) Now, the point for consideration is:

E.P. NO.34/11 IN O.S. No.280/20043/6

Whether the D.Hr is entitled for realization of the decretal amount by way of arrest and detention of the J.Dr in the civil prison as prayed for?

9) POINT:

There is no dispute about the fact that the D.Hr obtained a decree for recovery of money and the J.Dr is liable to pay a sum of

Rs.1,18,653/- towards the decree. PW1 being the D.Hr, he categorically deposed in his Chief Affidavit that J.Dr did not turn up to pay the suit amount, subsequent to passing of the decree, though he made several requests personally to him. He further stated that the J.Dr was doing oil business and he was earning Lakhs of rupees per month. But the

J.Dr intentionally avoided to pay the amount. He further stated that the J.Dr was hale and healthy person and he was having capacity to discharge the E.P. amount. During his cross-examination, he stated that he mentioned in his Affidavit which was filed along with Execution

Petition and wherein the J.Dr was doing oil business and earning Lakhs of rupees per month. In fact, admittedly he did not mention the said fact either in his affidavit or in his Execution Petition. Further he himself admitted that the J.Dr was never in thought of leaving

Chilakaluripet town. He also stated that he did not know how and when he asked the J.Dr for payment of the decretal amount. No doubt, now the question is whether there are means for J.Dr to pay the decretal amount. The J.Dr he himself stated that he was not having means and all his properties were auctioned by the State Bank of India,

Chilakaluripet and the amount which was received in the auction was credited to clear his debts. The same fact was admitted by the D.Hr.

In such circumstances, it is clear from the evidence of PW1 that there are no means for the J.Dr to pay the decretal amount.

9.2)The learned counsel for the J.Dr vehemently argued that the D.Hr did not follow the due procedure laid down U/s.51 of CPC for execution of the decree relating to money. Sec. 51 of CPC reads as follows:- “ Powers of Court to enforce Execution:-

E.P. NO.34/11 IN O.S. No.280/20044/6

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 sale without attachment of any property;

(c)by arrest and detention in prison (for such period not exceeding the period specified in sec.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 refused 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 fiduciary capacity to account.

9.3)No, doubt it is clear from the above provision of law that admittedly there is no allegation in the petition that the J.Dr is likely to abscond as well as the J.Dr dis-honestly transferred or concealed etc.

Further there is no any allegation as required under Clause (b) of

E.P. NO.34/11 IN O.S. No.280/20045/6

Proviso Sec.51 of CPC that the J.Dr has means to pay the amount as substantial amount there of or refuses or neglects to pay. In this connection, I rely upon a decision reported in 1996 (2) ALT 720 (E. Murugaiah and another Vs C. Ekambara Reddy) wherein his lordship held that “The existence of circumstances in clauses (a) to (c) to proviso to Sec.51 is one of the conditions to govern the liability of the judgment-debtor for arrest and should be alleged in the petition for detention in civil prison and shall not be ordered as a matter of course but only on fulfilment of the conditions in the proviso. The salutary object of the proviso is to protect the indigent and honest debtors.

Further the decree-holder must not only make allegation, but also lead evidence and establish prima-facie in support of his application. The decree-holder must prove that the judgment-debtor refused or neglected to pay inspite of the request at any time”.

9.4)In fact, the burden is on the part of the D.Hr to prove the means of the J.Dr. Here in this petition, the D.Hr he himself admitted that there were no properties belonging to J.Dr. Since all his properties were disposed off under the auction conducted by the State Bank of

India, Chilakaluripet branch. Further no material was placed by the

D.Hr to prove the means of J.Dr. In this connection, I rely upon a decision reported in 2006 (4) ALT 665 (G. Sudhakara Reddy Vs M/s.

Jahnavi Chit Fund Pvt. Ltd., and others) wherein his lordship held that it is for the D.Hr to establish to the satisfaction of the court that the J.Dr has means to pay the decretal amount and he is refusing or neglecting to pay the same. Here in this case also, the D.Hr failed to establish that the J.Dr refused or neglected to pay the decretal amount as well as the J.Dr was having means to pay the decretal amount.

9.5)As I discussed earlier, it is clear that the D.Hr failed to prove the means of the J.Dr and as such the petition is liable to be dismissed.

10)In the result, the Execution petition is dismissed without costs.

E.P. NO.34/11 IN O.S. No.280/20046/6

Directly typed to my dictation to the Personal Assistant, typed by him, corrected and pronounced by me in open Court on this the 28th day of March, 2014.

SD/- JVV SATYANARAYANA

MURTHY

PRINCIPAL JUNIOR CIVIL JUDGE,

CHILAKALURI PET.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER/D.Hr:FOR RESPONDENT/J.Dr:

PW1: Grandhi Hanumantha RaoNone

DOCUMENTS MARKED

FOR PETITIONER/D.Hr:

--Nil---

FOR RESPONDENT/J.Dr:

--Nil---

SD/- JVV SATYANARAYANA

MURTHY P.Jr.C.J, Chilakaluripet.

E.P. NO.35/11 IN O.S. No.285/20041-6

IN THE COURT OF PRINCIPAL JUNIOR CIVIL JUDGE, CHILAKALURIPET.

PRESENT: - SRI JVV SATYANARAYANA MURTHY., M.A., LL.M.,

PRL. JUNIOR CIVIL JUDGE, CHILAKALURIPET.

Friday, the 28th day of March, 2014

E.P. No.35 / 2011

IN

O.S. No.285 / 2004

BETWEEN: Grandhi Hanumantha Rao,… Petitioner/D.Hr

and

Tavva Srinivasa Rao,… Respondent /J.Dr

This petition is coming on 26.03.2014 before me for final hearing in the presence of Sri A. Pratap Kumar, M. Vamsi Krishna, Advocates for

Petitioner/D.Hr and Sri M.V. Krishna, Advocate for the Respondent/J.Dr and having stood over till this day for consideration, this Court delivered the following:

ORDER

The Decree Holder (hereinafter called as D.Hr) filed this

Execution Petition against the Judgment Debtor (hereinafter called as

J.Dr) for realization of sum of Rs.1,42,421/- by way of arrest and detention of the J.Dr in to civil prison in accordance with the provisions

U/o.21 R.37 & 38 of Civil Procedure Code, 1908 (hereinafter called as

C.P.C).

2) The D.Hr filed his affidavit along with Execution Petition complying the provisions of U/o.21 R.11-A of CPC. The brief averments in the affidavit are as follows:-

Prior to filing of the Execution Petition, several times the D.Hr asked the J.Dr to discharge the decretal amount but the J.Dr though he was having capacity to discharge the decretal amount did not discharge the same and not responded positively. Hence he prayed this court to arrest the J.Dr in accordance with the provisions U/o.21

R.38 of CPC and to realize the decretal amount by sending him to the civil prison.

E.P. NO.35/11 IN O.S. No.285/20042-6

3)On receipt of the show cause notice U/o.21 R.37 of CPC, the

J.Dr appeared before this court and filed his counter. The brief averments in the counter are as follows:-

He sustained heavy loss in oil business and the State Bank of

India, Chilakaluripet branch authorities conducted auction of all his properties and thereafter he became pauper. He has to maintain his wife, two children and old-aged mother and he is getting Rs.4,500/- per month as a salary as a clerk in Ramya Traders, Chilakaluripet. He further submitted that he has no capacity to pay the decretal amount.

He further stated that the D.Hr did not follow the due procedure laid down U/s.51 of CPC and as such the present petition may be dismissed.

4)After filing of the counter, this court conducted enquiry as required U/o.21 R.40 of CPC. During the course of enquiry, the D.Hr was examined as PW1 and no document was marked on his behalf. On the other hand the J.Dr did not turn up to adduce evidence on his behalf. He reported that he is not having any evidence on his behalf.

5) Heard both sides.

6)The learned counsel for the D.Hr argued that the J.Dr was doing business in oil and though he was having capacity to discharge his liability by paying the decretal amount to the D.Hr but he intentionally avoided to pay the decretal amount and as such the present petition may be allowed.

7)On the other hand, the learned counsel for the J.Dr argued that all the properties of J.Dr were auctioned by the State Bank of

India, Chilakaluripet branch authorities and the same was admitted by the D.Hr and as such it is clear that there are no means to the J.Dr to pay the decretal amount. The evidence of PW1 itself shows that he failed to prove the means of J.Dr and as such the present petition may be dismissed.

8) Now, the point for consideration is:

E.P. NO.35/11 IN O.S. No.285/20043-6

Whether the D.Hr is entitled for realization of the decretal amount by way of arrest and detention of the J.Dr in the civil prison as prayed for?

9) POINT:

There is no dispute about the fact that the D.Hr obtained a decree for recovery of money and the J.Dr is liable to pay a sum of

Rs.1,42,421/- towards the decree. PW1 being the D.Hr, he categorically deposed in his Chief Affidavit that J.Dr did not turn up to pay the suit amount, subsequent to passing of the decree, though he made several requests personally to him. He further stated that the J.Dr was doing oil business and he was earning Lakhs of rupees per month. But the

J.Dr intentionally avoided to pay the amount. He further stated that the J.Dr was hale and healthy person and he was having capacity to discharge the E.P. amount. During his cross-examination, he stated that he mentioned in his Affidavit which was filed along with Execution

Petition and wherein the J.Dr was doing oil business and earning Lakhs of rupees per month. In fact, admittedly he did not mention the said fact either in his affidavit or in his Execution Petition further he himself admitted that the J.Dr was never in thought of leaving Chilakaluripet town. He also stated that he did not know how and when he asked the

J.Dr for payment of the decretal amount. No doubt, now the question is whether there are means for J.Dr to pay the decretal amount. The

J.Dr he himself stated that he was not having means and all his properties were auctioned by the State Bank of India, Chilakaluripet and the amount which was received in the auction was credited to clear his debts. The same fact was admitted by the D.Hr. In such circumstances, it is clear from the evidence of PW1 that there are no means for the J.Dr to pay the decretal amount.

9.2)The learned counsel for the J.Dr vehemently argued that the D.Hr did not follow the due procedure laid down U/s.51 of CPC for execution of the decree relating to money. Sec. 51 of CPC reads as follows:- “ Powers of Court to enforce Execution:-

E.P. NO.35/11 IN O.S. No.285/20044-6

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 sale without attachment of any property;

(c)by arrest and detention in prison (for such period not exceeding the period specified in sec.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 refused 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 fiduciary capacity to account.

9.3)No, doubt it is clear from the above provision of law that admittedly there is no allegation in the petition that the J.Dr is likely to abscond as well as the J.Dr dis-honestly transferred or concealed etc.

Further there is no any allegation as required under Clause (b) of

E.P. NO.35/11 IN O.S. No.285/20045-6

Proviso Sec.51 of CPC that the J.Dr has means to pay the amount as substantial amount there of or refuses or neglects to pay. In this connection, I rely upon a decision reported in 1996 (2) ALT 720 (E. Murugaiah and another Vs C. Ekambara Reddy) wherein his lordship held that “The existence of circumstances in clauses (a) to (c) to proviso to Sec.51 is one of the conditions to govern the liability of the judgment-debtor for arrest and should be alleged in the petition for detention in civil prison and shall not be ordered as a matter of course but only on fulfilment of the conditions in the proviso. The salutary object of the proviso is to protect the indigent and honest debtors.

Further the decree-holder must not only make allegation, but also lead evidence and establish prima-facie in support of his application. The decree-holder must prove that the judgment-debtor refused or neglected to pay inspite of the request at any time”.

9.4)In fact, the burden is on the part of the D.Hr to prove the means of the J.Dr. Here in this petition, the D.Hr he himself admitted that there were no properties belonging to J.Dr. Since all his properties were disposed off under the auction conducted by the State Bank of

India, Chilakaluripet branch. Further no material was placed by the

D.Hr to prove the means of J.Dr. In this connection, I rely upon a decision reported in 2006 (4) ALT 665 (G. Sudhakara Reddy Vs M/s.

Jahnavi Chit Fund Pvt. Ltd., and others) wherein his lordship held that it is for the D.Hr to establish to the satisfaction of the court that the J.Dr has means to pay the decretal amount and he is refusing or neglecting to pay the same. Here in this case also, the D.Hr failed to establish that the J.Dr refused or neglected to pay the decretal amount as well as the J.Dr was having means to pay the decretal amount.

9.5)As I discussed earlier, it is clear that the D.Hr failed to prove the means of the J.Dr and as such the petition is liable to be dismissed.

10)In the result, the Execution petition is dismissed without costs.

E.P. NO.35/11 IN O.S. No.285/20046-6

Directly typed to my dictation to the Personal Assistant, typed by him, corrected and pronounced by me in open Court on this the 28th day of March, 2014.

SD/- JVV SATYANARAYANA MURTHY

PRINCIPAL JUNIOR CIVIL JUDGE,

CHILAKALURI PET.

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

FOR PETITIONER/D.Hr:FOR RESPONDENT/J.Dr:

PW1: Grandhi Hanumantha RaoNone

DOCUMENTS MARKED

FOR PETITIONER/D.Hr:

--Nil---

FOR RESPONDENT/J.Dr:

--Nil---

SD/- JVV SATYANARAYANA MURTHY

P.Jr.C.J, Chilakaluripet.

n the Court of :PRL. JUNIOR CIVIL JUDGE,chilakaluripet Case No. :OS/0000004/2012 Kolla Veeraiah Chowdary Vs Kommanaboina Paparao

Date  : 02-04-2014

Order: Judgment pronounced. V.S.J., \ In the result, the suit is decreed with costs in favour of plaintiff and against the defendant for a sum of Rs. 37,983-00 with subsequent interest at 12 per cent p.a. on principal sum of Rs. 25,000-00 from the date of decree and interest there after at 6 per cent p.a. till the date of realization. Nature of Disposal: DECREED WITH COSTS Disposal Date: 02-04-2014 PRL. JUNIOR CIVIL JUDGE,chilakaluripet

In the Court of :PRL. JUNIOR CIVIL JUDGE, CHILAKALURIPET

Case No. :EP/0000016/2014 MS. Sriram City Union Finance Ltd Vs Nagalla Peda Narasimha Rao

Date : 02-04-2014

ORDER: F.S. memo filed. F.S. is recorded. Hence, E.P. is terminated. Nature of Disposal: TERMINATED Disposal Date: 02-04-2014

PRL JUNIOR CIVIL JUDGE,

CHILAKALURIPET