Order 21 Rules 37 and 38 C.P.C.- The E.P. was filed under Order 21 Rules 37 and 38 C.P.C. In matters of this nature, the initial burden to show that the judgment debtor was possessed of adequate means, rests upon the decree holder. However, the burden is not the one of the nature to prove the facts in issue, or relevant facts in the suit. It would be sufficient if the decree holder broadly indicates the nature of properties owned or means possessed by the judgment debtor. Beyond that, he cannot be expected to have perfect and complete knowledge about the resources of the judgment debtor. Added to that, much would depend upon the version that may be put forward by the judgment debtor. It is the combined examination of these two, that would decide the result of the E.P. On his part, the petitioner stated that the respondent owned about Acs.5.00 of land and an independent house and that he is doing business. In his cross examination, the respondent stated that his father owns an extent of Acs.3.50 cents of land and their family does a business which yields Rs.700/- to Rs.800/- per day. These facts were sufficient to arrive at a conclusion that the respondent is in a position to clear the obligation under the decree. However, the executing Court proceeded as though the petitioner was under obligation to prove every fact beyond any pale of reasonable doubt and has just relieved the respondent from the obligation to pay the decretal amount. A person or even a family that derives income of Rs.700/- to Rs.800/- per day and is possessed of agricultural income, can certainly make an effort to discharge the obligation under the decree.


THE HON'BLE SRI JUSTICE L.NARASIMHA REDDY        

CIVIL REVISION PETITION No.448 of 2012  

27-09-2012

B.Ravi Kumar Reddy

Shaik Masthan Vali

Counsel for the petitioner: Sri Venkateswarlu Sanisetty

^Counsel for Respondent Sri T.K. Basha Vali

<Gist

>Head Note

?Citations

ORDER:

        The petitioner filed O.S.No.130 of 2006 in the Court of the       I
Additional Junior Civil Judge, Ongole for recovery of amount from the respondent
on the strength of Katha.  The suit was decreed and the decree became final.
Since the respondent did not comply with the decree, the petitioner filed
E.P.No.495 of 2008 under Order 21 Rules 37 and 38 C.P.C. for arrest of the
respondent and detain in civil prison. On receiving the notice in the E.P., the
respondent entered appearance.  He filed a counter denying the allegation of the
petitioner.  He stated that he has no means to discharge the decreetal amount
and that he is dependant upon his father. He has also stated that he undertakes
agriculture as and when instructed by his father. The executing Court dismissed
the E.P. through order, dated 12.10.2009.  Hence, this revision.
        Sri Venkateswarlu Sanisetty, learned counsel for the petitioner submits
that the respondent is possessed of adequate means and still, he is avoiding
obligation under the decree.  He submits that the respondent admitted in his
deposition that his family is owning Acs.3.50 cents of land and that their
family is running a business, which yields to Rs.700/- to Rs.800/- per day and
in that view of the matter, the executing Court ought not to have dismissed the
E.P.
        Sri T.K.Basha Vali, learned counsel for the respondent, on the other hand,
submits that except making bald allegations that the respondent is possessed of
means, the petitioner did not prove the averments in the E.P.
        After the decree in O.S.No.130 of 2006 became final, the petitioner filed
the E.P. to recover the amount.  The E.P. was filed under Order 21 Rules 37 and
38 C.P.C. In matters of this nature, the initial burden to show that the
judgment debtor was possessed of adequate means, rests upon the decree holder.  
However, the burden is not the one of the nature to prove the facts in issue, or
relevant facts in the suit.  It would be sufficient if the decree holder broadly
indicates the nature of properties owned or means possessed by the judgment
debtor.  Beyond that, he cannot be expected to have perfect and complete
knowledge about the resources of the judgment debtor.  Added to that, much would
depend upon the version that may be put forward by the judgment debtor.  It is
the combined examination of these two, that would decide the result of the E.P.
        On his part, the petitioner stated that the respondent owned about
Acs.5.00 of land and an independent house and that he is doing business.  In his
cross examination, the respondent stated that his father owns an extent of
Acs.3.50 cents of land and their family does a business which yields Rs.700/- to
Rs.800/- per day.  These facts were sufficient to arrive at a conclusion that
the respondent is in a position to clear the obligation under the decree.
However, the executing Court proceeded as though the petitioner was under
obligation to prove every fact beyond any pale of reasonable doubt and has just
relieved the respondent from the obligation to pay the decretal amount. A person
or even a family that derives income of Rs.700/- to Rs.800/- per day and is
possessed of agricultural income, can certainly make an effort to discharge the
obligation under the decree.
        Hence, the civil revision petition is allowed and the order under revision
set aside.  The respondent is granted the facility of clearing the decretal
amount in monthly instalments of Rs.5000/- (Rupees five thousand only),
commencing from November, 2012.  He shall deposit the amount to the credit of
the E.P. on or before 10th of every month.  If he commits default in payment of
instalments for two consecutive months, the E.P. shall stand allowed and he
shall be liable to be detained in civil prison. There shall be no order as to
costs.
        The miscellaneous petition filed in this revision also stands disposed of.
______________________  
L.NARASIMHA REDDY,J    

Dt:27.09.2012.

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