1. This revision is filed by the decree holder impugning the order of the execution Court in E.P.No.14 of 2006 on the file of the Senior Civil Judge, Janagaon in O.S.No.8 of 1998. The decree holder sought for the arrest and detention of the judgment debtor in the civil prison for not honouring the money decree. Through the impugned order dated 31.10.2006, the execution Court held that the decree holder failed to show that the judgment debtor has means and that the judgment debtor, therefore, cannot be committed to the civil prison.
2. The decree holder laid a suit against the judgment debtor for a sum of Rs.2,92,173/- together with interest thereof. On 14.10.2003, the suit was decreed. The judgment debtor contends that he laid an appeal in A.S.No.640 of 2004 before the High Court and that the same is pending. The decree holder, on the other hand, contends that he never received notices in the appeal and that the appeal, therefore, is deemed to be not pending. Even the judgment debtor admitted that there is no stay in A.S.No.640 of 2004. Sri Balchand, learned counsel for the judgment debtor, however, contends that it is not as though the appellate Court refused to stay the operation of the judgment and decree passed by the trial Court. It is his case that as the judgment debtor did not have means to discharge the money decree, the judgment debtor did not ask for the stay of the execution of the decree and that the decree holder in any event could not proceed against the judgment debtor, in view of the judgment debtor not having means.
3. Ex.P.No.14 of 2006 was laid by the decree holder about three years after obtaining decree in the suit. The E.P. amount was Rs.4,81,788/-. The decree holder sought for the arrest and detention of the judgment debtor in the civil prison under the provisions of Order 21 Rules 37, 38 and 40 of the Code of Civil Procedure (‘CPC’ for short) alleging that the judgment debtor has been evading to honour the decree, despite having means to execute the same. It is the case of Sri P.V. Sanjeeva Rao, learned counsel for the decree holder that the judgment debtor has means and that if the judgment debtor is not willing to honour the decree, he should be liable to be arrested and sent to the civil prison. The execution Court held that the decree holder failed to establish that the judgment debtor has means to honour the decree. Supporting the view of the execution Court, the learned counsel for the judgment debtor contends that if the judgment debtor has means, the decree holder would be welcome to proceed against the properties of the judgment debtor.
4. The law regarding the arrest and detention of the judgment debtor on the ground that he has or does not have means is more or less settled by V.R. Krishna Iyer,J., in Jolly George Varghese v. Bank of Cochin AIR 1980 SC 470. The Supreme Court referred to Articles 14, 19 and 21 of the Indian Constitution together with Section 51 CPC in that case. The Supreme Court also referred to Universal Declaration of Human Rights as well as other decisions of the Supreme Court. The Supreme Court ultimately held:
"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 as demand verging on dishonest disowning of the obligation under the decree. Here consideration of the debtor’s other pressing needs and straitened circumstances will play prominently."
5. The counsel for both sides placed reliance upon the decisions of the Andhra Pradesh High Court which in turn rely upon and interpret Jolly George Varghese. In Saratchandra, Padhyannadange v. Gudiya Eswara Rao 2000 (3) ALT 411, the single Judge of High Court referred to the view of the Supreme Court in Jolly George Varghese’s that the simple default to discharge the decree is not enough.
6. In Kalidindi Rama Raju v. Vijaya bank (Nationalised), Bhimavaram 2002 Suppl.(2)s ALD 300, the High Court of Andhra Pradesh observed that the recovery by arrest and detention of the judgment debtor in civil prison in execution of the decree is one of the modes provided for by the Code of Civil Procedure and that where arrest and detention of citizens are matters involving the personal liberty of such citizen, the arbitrary arrests are deprecated. In K. Vijyakumar v. N. Gururaja Rao 2004 (3) ALT 476, relying upon the decision of the Karnataka High Court in K. Karunakar Shetty v. Syndicate Bank, Manipal AIR 1990 Karnataka 2, the High Court of Andhra Pradesh held that when there is an alternative source available for the decree holder to recover monies, the claim for the arrest and detention of the judgment debtor was not reasonable and fair. The High Court further held in this case:
"The aspect of deliberate refusal or negligence has to be necessarily established by the decree holder to the satisfaction of the executing Court."
7. On the strength of Vijay Kumar’s case and other cases referred to, the learned counsel for the judgment debtor contends that if the decree holder considers that the judgment debtor has means, the decree holder may proceed against the property of the judgment debtor and that it is unfair to seek for the arrest and detention of the judgment debtor.
8. The learned counsel for the decree holder has not questioned the ratio of these decisions. He is wholly in agreement with the observations of the Court and the contention of the learned counsel for the judgment debtor. His contention, however, is that the judgment debtor has means but has been deliberately evading to honour the decree despite means and that the judgment debtor, therefore, deserves to be committed to civil prison.
9. He referred to various admissions of the judgment debtor as RW.1 and pointed out that RW.1 has means to discharge the debt. Inter alia, it is the contention of the learned counsel for the decree holder that the wife of RW.1 possesses lands, which has been generating income and that the judgment debtor, therefore, has means to discharge the debt. The learned counsel for the judgment debtor correctly pointed out that the means of the judgment debtor shall decide whether the judgment debtor deserves to be arrested or otherwise for not honouring the money decree and that the means of the wife or children of the judgment debtor cannot be computed as the income of the judgment debtor to determine his means. I, may, however, examine whether the judgment debtor independently possesses means to honour the decree.
10. The judgment debtor has five children. Three of them are daughters. The first daughter was already given away in marriage. The son-in-law of the judgment debtor has been working as an Engineer in the Air Force. The married daughter of the judgment debtor is a B.Sc. M.Ed. She has been working as a government teacher. The second daughter of the judgment debtor is a graduate in engineering. The third daughter of the judgment debtor was a student of the final year engineering by 2006. Perhaps, she has completed her engineering and perhaps she is an employee now.
11. The eldest son of the judgment debtor is a Post-Graduate in Law. He has studied cyber laws. The second son of the judgment debtor was a student of the penultimate year of engineering by 2006. Perhaps he is also a graduate by now.
12. The judgment debtor as RW.1 contended that the second and third daughters and the second son of the judgment debtor secured admission in engineering through convenor quota only and that therefore, the seats were neither paid seats nor management quota seats. He, however, pointed out that he was incurring Rs.50,000/- per annum on each of his three children towards their studies in engineering and that the judgment debtor was thus incurring Rs.1,50,000/- in all towards the education of his children, who were students.
13. RW.1 indeed claimed that all the three children had availed educational loans from Andhra Bank and that he had nothing to do with the educational loans of his children. He further deposed that his wife stood as guarantor for the educational loan of the children by mortgaging her house property. Be that as it may, the judgment debtor as RW.1 admitted that he incurred Rs.1,50,000/- per annum towards the education of his children.
14. The judgment debtor admitted that his matrimonial life had been happy and that there were no differences between him and his wife. His stand is that his wife possesses landed property and building at Janagaon. So far as title to the landed property by the judgment debtor is concerned, it is the case of the judgment debtor that the lands in Survey Nos.113 and 135 are inam lands. He deposed that he did not know how much extent of the lands in Survey Nos.113 and 135 did his wife possess. He, however, claimed that disputes between the members of his family and his agnates has been going on regarding the title of the property. He admitted that pattas in respect of Survey Nos.113 and 135 stand in the name of the members of his family and his agnates.
15. The learned counsel for the judgment debtor contended that in view of the provisions of the A.P. (Telangana Area) Abolition of Inams Act, 1975, the properties in Survey Nos.113 and 135 are not amenable to attachment and are also not available for sale. It is his further contention that in view of Survey Nos.113 and 135 being inam lands, they cannot be computed as the lands owned by the judgment debtor to assess the means of the judgment debtor. Under the provisions of the Inams Abolition Acts, Inams Tribunals determine the occupancy rights of the farmers and inamdars and that pattas are issued only thereafter. As rightly submitted by the learned counsel for the decree holder, the judgement debtor did not claim that he is still to obtain occupancy rights. From the evidence of judgment debtor as RW.1, it would appear that the judgment debtor has already obtained patta.
16. Ex.B.1 is a certificate issued by the Mandal Revenue Officer, Janagaon, certifying that land in Sy.No.113 at Ac.1.20 guntas and land in Sy.No.135 at Ac.0.31 guntas are chowthai inam lands. It was further certified that there is a dispute amongst the joint pattadars of the said land. The learned counsel for the decree holder contended that the question of joint patta arises only after the occupancy rights are determined. In view of Ex.B.1, it cannot be considered that the property in Sy.Nos.113 and 135 are still inam lands proscribing their attachment and prohibiting the judgment debtors and other owners of the property from selling the same.
17. Ex.B.2 is the counter filed by the second respondent in RC No.B/1115/2003 on the file of the Mandal Revenue Officer, Janagaon. It relates to joint patta in respect of inam lands. The counter, laid by the judgment debtor shows that pattas were issued in respect of Survey No.113 and 135. Once the inam lands have already been converted into patta lands, the judgment debtor cannot take shelter under the provisions of A.P. (Telangana Area) Inams Abolition Act that as the lands are inam lands and are not alienable. The petitioner cannot be considered to be in possession of inam lands only which cannot be alienated.
18. Thus, reading of Exs.B.1 and B.2 shows that the judgment debtor has a share in the property in Survey Nos.113 and 135. The total value of the execution petition is Rs.4,81,788/-. It, perhaps, would be slightly over Rs.5,00,000/- as on today. It is not established by the judgment debtor that his share in the lands in Survey Nos.113 and 135 would be less than Rs.5,00,000/-. I, therefore, consider that Ex.B.1 itself establishes that the judgment debtor has means to honour the decree. Added to it is the fact that the judgment debtor used to spend more than Rs.1,50,000/- per annum on his three engineering student children. The judgment debtor as RW.1 did not state that the educational expenses of his children were borne by his wife. It, therefore, is liable to be computed that the judgment debtor admitted that he was spending Rs.1,50,000/- of his own money on his three student children. None of the three children are students and the income that the judgment debtor saves on account of not spending the same for the education of his children must be available with the judgment debtor. The judgment debtor, therefore, cannot claim that he has no means to honour the decree. I also do not agree with the contention of the learned counsel for the judgment debtor that the judgment debtor has been living on the income of his wife.
19. Admittedly, the income of the wife of the judgment debtor cannot be computed to determine whether the judgment debtor has means to discharge the decretal amount. At the same time, the judgment debtor must be deriving minimum income of Rs.1,50,000/- per annum which can be culled out from the indirect admissions of the judgment debtor. Not only the income but the value of the share of the judgment debtor in the properties in Survey Nos.113 and 135 clearly establish that the judgment debtor has means to honour the decree.
20. However, it was observed in Jolly George Varghese (supra) that it would not be sufficient if it is shown that the judgment debtor has means to honour the decree and has failed to do so. V.R.Krishna Iyer,J., considered that there must be element of bad faith beyond mere indifference to pay before it can be held that the judgment debtor was liable for detention in the civil prison. The learned counsel for the judgment debtor, however, could not contend that there was no mala fides on the part of the judgment debtor in not honouring the decree, for the judgment debtor, who has no means, could not honour the decree whether he has mala fides or has a bona fide intention to honour the decree. Consequently, the question of bad faith on the part of the judgment debtor would not arise according to the learned counsel for the judgment debtor. However, for the reasons already set out, I concluded that the judgment debtor has means to discharge the debt and has failed to do so.
21. Consequently, the point whether the failure of the judgment debtor in honouring the decree was mala fide or otherwise would arise for consideration. In his deposition, the judgment debtor deposed (in the penultimate para of the deposition of the judgment debtor as RW.1):
"I am not intending to pay the decretal amount since the decree which (sic) obtained by the D.Hr is a false one against it I have preferred an appeal. I will think about the payment, if the appeal which (sic) preferred by me before the Hon’ble High Court goes against me."
22. As rightly submitted by Sri P.V. Sanjeeva Rao, learned counsel for the decree holder, the attitude of the judgment debtor is patent from the above statement. He was not willing to honour the decree not because he did not have means. He deposed that he would consider honouring the decree in the event the appeal is dismissed. He did not depose that irrespective of the result of the appeal, he would not be able to honour the decree in view of lack of means. Thus, the evidence of the judgment debtor clearly shows that it is not a case of some element of bad faith, but a case of supine indifference and mala fide on the part of the judgment debtor in the shade of legal protection that unless the decree holder establishes the means of the judgment debtor, the judgment debtor need not honour the money decree.
23. The decree holder established that the judgment debtor has means viz., that i) he has income at more than Rs.1,50,000/- per annum, whatever the sources of income be; ii) the judgment debtor has saleable interest lands in Survey Nos.113 and 135; and iii) the failure of the judgment debtor to honour the decree is on account of bad faith on the part of the judgment debtor. The judgment debtor, consequently, is liable to be arrested and detained in the civil prison. The execution Court erred in assessing the legal position correctly and passed erroneous order. The order of the execution Court, consequently, is liable to be set aside. I do not consider it just and proper for the revisional Court to direct the arrest of the judgment debtor as it is the execution Court which shall take steps from the stage where it passed the impugned order. Consequently, the execution petition in E.P.No.14 of 2006 deserves to be remitted to the execution Court for proceeding further.
24. The Civil Revision Petition is, accordingly, ordered. The impugned orders of the execution Court in E.P.No.14 of 2006 are set aside. It is found that the judgment debtor has means to honour the decree and has failed to honour the same with bad faith and that the judgment debtor, therefore, is liable to be arrested and committed to the civil prison. The case, consequently, is remitted to the execution Court. The execution Court shall take steps from the stage of issuance of warrant for the arrest of the judgment debtor till the execution of the execution proceedings. In view of the fact that the decree was passed in 2003, the execution Court is requested to dispose of the execution petition expeditiously. No costs.
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