The High Court · 2025

Counsel for the Petitioner: Smt. A.B. Jyotsna Counsel for the Respondent: Sri Y. Bala Murali The Court made the following: ORDER TTIE HON'BLE SRI JUSTICE T. \'INOD KTIMAR CIYIL REVISION PETITION No.854 of 2025 ORDER: This Ciril Revision Petition is filed under Section [15 C.P.C. against the order dated 04-03-2025 passed in E.P.No.l,t of 2023 in O.S.No.600 of 2023 on the file of the I Additional Jurrior Civil Judge Corrrl at Nalgonda

2. The petitioner herein is the Judgment-Debtor (J.Dr.) md defendant in the E.P. as well as in the suit filed by the respon<lent herein as pLaintiff/Decree-Holder (D.FIr)

3. The abovr: mentioned suit was filed for recovery of money basing on promissory notes. The aforesaid suit filed by the respondent her,:in was decreed ex parte on 1l-07-2022.

4. The respc,ndent/D.llr, after obtaining ex parte order in the aforesaid suit hled by him, had filed the underlying Execution Petition under Order XXI Rule 11(2) C.P.C. claiming that though the petitioner/J.Dr. is having sufficient means to pay the decretal amount to the respondent herein, but is intentionally not paying the same and did not abide the orders of the Court. I 2

5. The respondent further claimed that since the petitioner herein failed to satisf, the decree, it is necessary to put him in civil imprisonment for realization of the decretal amount as per Order XXI Rule 37 C.P.C.

6. Petitioner contends that the trial Court had issued notice of the aforesaid petition filed, to which he had filed; that the respondent/D.Flr. had examined himself; and that Court thereafter had passed the impugned order allowing the underlying Execution Petition directing the petitioner herein to be detained in civil prison for a period ofthree months. 7 . Petitioner contends that the trial Court while allowing the aforesaid Execution Petition, did not record any finding as to the means of petitioner to satisff the decree and despite the same petitioner avoiding to pay the decretal amount.

8. It is the further case of the petitioner that despite the petitioner filing counter to the Execution Petition claiming that only after moving the Execution Petition against the properties held by the petitioner/J.Dr. in order to recover the decretal amount, the Execution Petition for arresting the J.Dr. and sending him to civil prison is maintainable and the respondent 3 without taking any steps, has straightaway fi1ed underly ing Execution Petition for sending the petitioner/J.Dr. to c ivil imprisonment in terms of Order XXI Rule 3 1 CPC and the I rial Courl also erred in allowing the said application and seeks for setting aside thr: same.

9. Per contru,learned counsei for the petitioner contended Lhat the petitioner, despite having means to satisff the decree, has failed to pay th,e same.

10. On behalf of the respondent, it is fuither contended that the petltloner nev,31' pleaded in the suit nor in the Execul.ion proceedings o{'he not having means to satisff the decree, and thus, the clainr now made before this Court of petitionel not having means to pay the decree amount is only to evade the payment due under the decree and to get over the order direct-ing civil imprisonn.rent

11. I have taken note ofrespective contentions urge<l.

12. Before adverting to respective contentions, it is important to note that in an Execution Petition filed under Order XXI Rul,.: 37 r/w Section 51 CPC, theburden is the onthe D.Hr to satisfl the 4 Court that the respondent/J.Dr. despite having means to pay the decretal amount, has failed to discharge the liability under the decree for the Court to order for civil imprisonment. The order of J.Dr. to civil imprisonment for not satisfring the decree should be the Iast resort, as the same violatEs his fundamental right to life.

13. In the facts of the present case, the respondent herein by filing the underlying Execution Petition under Order XXI Rule 1l(2) CPC except stating that the petitioner/J.Dr is having sufficient means to pay the decretal amount and is intentionally not paying the same, did not disclose as to the means by which the petitioner could have satisfied the decree. Even in the cross- examination of respondent by the petitioner, the respondent admiued to the fact that he having not filed any document to show that the petitioner/J.Dr. has got properties in his name, except denying the suggestion put to him of the petitioner/J.Dr not having any financial capacity to repay the loan taken by him, for which a decree has been passed. The trial Court also did not record any finding as to the properlies held by the petitioner, thereby having means to pay and having failed to satisff the decree. / ,1 _/

14. Before oldering detention of a person in civil prison for execution of a decree, the procedure contemplated under Order XXI Rule 31 10 40 C.P.C. has to be necessarily followed by the Court as mandated under Section 51 C.P.C. Though, in the lacts of present car;e, the trial Court having issued notice to the petitioner/J.Dr. in terms of Order XXI Rule 37 C.P.C. and the petitioner having filed his counter-affidavit thereto opposing the same, the trial Courl failed to follow the subsequent procedure while allorving, the underlying Execution Petition 15 ln Kasi liubbaiuh Mudali Vs. Kasi Veeraswamy Mu,tuhr the erstwhile High Court of Andhra Pradesh has detailed the procedure ples;cribed under Order 21 Rule 37 CPC in the mzrtter of arrest, and treld as under: " 7. xxr Para-7. ,,1 plain reading of Rule 37 show that it contetnplates 3 siluations riz.. (a) The etecuting Court shall issue notice calling upon the judgmenl-a'elttor to oppear before the Court on a dLtte to be spectfied a,nd. show cause as to why he should not be tommitted to civil prison. (Rule 37(1)). 'atn zooz Noc t tsiae) 6 (b) The Court can straighfway issue warrant of arrest of the judgment-debtor in case it is satisJ'ied that the detay in issuance of notice under Rule 37(l) would enable the judgment _debtor to abscond from or leave the local limits of the jurisdiction oJ the Court. (Proviso to Rule 37(l)). (c) The Court can issue warrant of arrest in case the judgment_ debtor fails to appeor even after the receipt of notice issued under Rule 37(t). (Rule 37(2)). Para-8. Further steps to be taken after rhe appeorance oJ.the judgment-debtor either yoluntarily or on being brought before the Court ctfter arrest are provided under rule 40. Para-9. According to this Rule, once the judgment_debtor appears before the Court in obedience lo the notice or, brought before it on being arrested, the Court shall proceed to hear the decree-holder and take all evidence in the pr^-ence of the judgment-debtor. The judgment_debtor shall be given an opportunity of showing cause why he shoukl not be committed to civil prison- Rule 40 contempldtes almost an unintetupted enquiry in the matter. That is the reason why it provides for detention of the judgment-debtor in the custody of an fficer oJ the Court or releasing on furnishing securify pending conclusion of the enqutry under sub-rule (l). Any order of arrest to be made after conclusion of the enquiry under sub_rule (l) of Rule 40, is once again subject to Section 5l, C.p.C. " Further, the Court in the aforesaid decision while referring to the procedure under Order XI Rule 37 Cp.C. in para_14 held : 8- The consequences of any deviation from the procedure were explained in para 14, as under / / 1 Para-11. tlrre.tting of the judgment-debtor and sending him to cit,il prison i\ a matter touching the personal liberty, even if it is a step in a citil proceedings. Nottrithstanding the difference as to the cause o,t deprivolion of the liberty of the person, C'P.O' ensures tht: ltroper protection of the personal liberty That is r+'hy several precnttions are provided, before the liberty of a' person tleprivecl. R;le 10, in categorical terms insists thal v'hen a person app(ots before lhe Courl in response lo a nolit'e or, is before the (:ourt, on having been arrested in pursuance of a warrant. lh,z Court shall examine the decree-holder in the presence oJ rhe judgment-debtor. The decree-holder will be placetl unde" obligalion to prove his contention in respect of the plea raised hy fu;* ,, the execution petition. Normally, in execution proceedings otherwise than through arrest, there is no hurden ccrst ttpon Page; 520 the decree.holder to prove ony other fact. Since the liberty ofa citizen is involved' law places a jtrther obLigalion upon the tlecree holder lo prove cerhtin facts as conlenryloled under Rule 40(1), that too, in the presence d a judgment-dt btor. The other provisions contained in Rule '10 a's well as the pt ovisions of Sections 5 I and 55 of the C..r'.C. add strenglh to these provisions. In a way, those provision in their cumulative e/fect, ascribe an element of criminal trial, lo the proceetlings under Rule I 1 -A of Ordet 21 of C.P-C. "

16. The afolesaid decision laying down the procedure has b'een referred to by the erstwhile High Court of Andhra Pradeslr in K.Harikrishna Vs. Dr.L.Raghuhatha Rao & Ors.2 '7 2oo4 scc online AP 447 8

17. By applying the above judgments of the erstwhile High Court ofAndhra Pradesh is applied to the facts ofthe case, the same discloses that the trial Court did not conduct enquiry as mandated under Rule 40 C.p.C. by recording a finding as to the means of the petitioner to satisl! the decree; despite which the petitioner/J.Dr. failing to satisft the decree requiring the Court to pass an order of arrest of petitioner/J.Dr. in civil imprisonment by exercising power under Section 5l C.p.C.

18. On the other hand, a reading of the impugned order would show that the trial Court on issuing notice to the petitioner of its intention to proceed under Order XXI Rule 37 Cp.C., had straightaway passed the impugned order noting that the petitioner/J.Dr. had willfully failed to obey the order dated 1I-07-2022, even though he had an opportunity to obey the decree and the same is established by respondent/D.Flr by his unchallenged testimony, without the respondent/D.Flr. bringing on record as to the means processed by the petitioner/J.Dr. to satisfz the decree. Thus, the order of the trial Court in allowing the underlying Execution Petition and directing the petitioner be *1 detained in civil prison for a period of 3 months, cannot be said as having been passed confirming to the mandatory requirements 9 of Order XXI C.P.C. On the other hand, since the impugned order of the trial Courl discloses that there is clear deviation,inot adhering to the mandatory steps/procedure contemplated under Section 51 anrl Order XXI of CPC. Thus, this Court is of the view that the irnpugned order cannot be sustained. _

19. Accordingly, the impugned order dated 04-03-2025 passed in E.P.No.9 of 2023 in O.S.No.600 of 2023 is set aside, and the matter is remitted back to the trial Court for fresh consideralion strictly in accordance with the procedure prescribed ulder Section 51 r/rv Order XXI C.P.C

20. Subject to above direction, the Civil Revision petitiorr is allowed. No costs.

21. As a sequel. miscellaneous petitions pending if any shall stand closed. //TRUE COPY// Sd/- P. CH. NAGABHUSHAMBA DEPUTY REGISTRAR \i \ SECT1ON OFFICER

1. The I Additional Junior Civil Judge, at Nalgonda 2. One CC to Smt. A.B. Jyotsna, Advocate IOPUC] 3. One CC to Sri Y, Bala Murali, Advocate [OPUC] 4. Two CD Ccpies \ \ To, q HIGH COURT DATED:0410412025 ORDER CRP.No.8S4 of 2025 I.TE C j. ;€ / ) .l., s\. $ S. c) |. I ]rr . .-=:.:_:r.- "- rr' ALLOWING THE CIVIL REVISION PETITION OI{