P.Rama Koti Reddy v. Vanga Subba Reddy

This Civil Revision Petition is directed against the order, dated 19-07-2006, in E.P.No.166 of 2003 in O.S.No.201 of 2001 on the file of the learned Principal Junior Civil Judge, Tenali, wherein the said petition filed by the respondent herein was ordered, overruling the objection of the petitioner-judgment-debtor and directing issuance of warrant of arrest against the petitioner- judgment-debtor in execution of the decree for recovery of the balance amount due.

None appeared for the petitioner-judgment-debtor though the matter is posted under the caption ‘for orders’. None appeared for the respondent-decree-holder though served with notices. Perused the record.

Respondent herein filed the suit in O.S.No.201 of 2001 against the petitioner-judgment-debtor for recovery of money and the suit was decreed for a sum of Rs.63,492/- besides costs. Respondent-decree-holder filed E.P.No.166 of 2003 for realization of the decretal amount seeking arrest of the petitioner-judgment-debtor on the ground that in spite of having sufficient means petitioner has been deliberately avoiding the payment of the decretal amount. According to the respondent-decree- holder, petitioner-judgment-debtor is working in the Health Department and drawing salary of Rs.10,000/- per month besides having cash of Rs.1,00,000/-. Petitioner- judgment-debtor filed a counter in the E.P. contending that he was getting salary of only Rs.5000/- per month and that he has to maintain a large family, comprising of his parents and a brother, who is unemployed, and therefore he has no sufficient means to pay the decretal amount.

During enquiry, respondent-decree-holder was examined as P.W.1 and no documents were marked on his behalf. Petitioner-judgment-debtor was examined as R.W.1 and Exs.R1 to R3 were marked.

As seen from the salary certificate-Ex.R1, the petitioner-judgment-debtor was getting a gross salary of Rs.8286/- per month. Petitioner-judgment-debtor being an employee in the Health department and getting salary of more than Rs.8000/- per month, it cannot be said that he had no means at all to pay the decretal amount. In fact, as seen from the impugned order, petitioner-judgment-debtor made part-payment of Rs.3000/-; Rs.5000/- and Rs.4000/- on each occasion towards decretal amount. Instead of making efforts to pay the balance amount, he raised a contention before the Executing Court that the E.P. for arrest is not maintainable and the decree-holder has to

proceed against his salary at the first instance. The Executing Court has rightly held following the decisions in STATE BANK OF INDIA v. M/S INDEXPORT REGISTERED AND OTHERS[1] A.SAMBASIVARAO v. RUDRU BHASKARA RAO[2] that the decree-holder has every right to choose the mode of execution of the decree and the judgment-debtor cannot dictate terms to the effect that the decree-holder shall execute the decree in a particular mode.

The Code of Civil Procedure contemplates various modes of execution of the decree and the decree-holder is certainly entitled to choose any of the modes permissible under law and there is no fetter imposed on the decree-holder by law that he shall select any particular mode and exhaust the same before choosing the other mode of execution. As the judgment-debtor was an employee the Health department, having regular income by way of salary, and the decretal debt remained undischarged, the decree-holder was certainly entitled to seek realization of the balance decretal amount by way of arrest of judgment-debtor. The judgment-debtor cannot insist that the decree-holder shall proceed against his salary alone and not against the person. The impugned order of the Executing Court, rejecting the objection raised by the judgment-debtor and directing issuance of warrant of arrest against the judgment-debtor for recovery of the balance amount due under the decree, does not therefore suffer from any legal infirmity or irregularity so as to warrant interference of this Court in exercise of the revisional jurisdiction. There are absolutely no merits in the revision petition.