SYED KURSHEED HUSSAIN Vs. SAIDA BANU

JUDGEMENT

(1.) These two revision petitions are sought to be filed against common order passed by the lower Court refusing to recall arrest warrant and refusing to give direction to the decree holder (DHr) to proceed against attached properties of the judgment debtor (JDr) or granting instalments @ Rs. 1,000/- to the JDr. The matter arises out of execution proceedings relating to execution of a money decree which was passed on 21.10.2002 for Rs. 2,56,036/- with subsequent interest at 12% per annum. Though previously several execution petitions were filed, the DHr. was unsuccessful in getting his money due under the decree. Inspite of the petitioner/JDr. was arrested in previous execution and brought to Court, when there was award from Lok Adalat with consent of both the parties, the JDr. did not honour the said award and became a defaulter. Therefore, the DHr. filed the present E.P. for arrest and detention of the judgment debtor in prison.

(2.) Placing reliance on Marepally Narasimha Reddy v. Kancharla Kumara Swamy, 2011 4 ALT 3, Dumpala Syamala Rao v. Killi Markendeswara Rao, 2011 4 ALT 196, E.N. Satyanarayana v. Smt. Chowdamma, 2009 5 ALT 251, Pothuneedi Laxmana Rao v. Kadasu Muneswara Rao, 2005 4 ALD 833, K. Harikrishna v. Dr. L. Raghunatha Rao, 2004 5 ALT 52 and Kalidindi Rama Raju v. Vijaya Bank,2002 2 ALD 300 of this Court. It is contended by the petitioner's counsel that when there is alternative remedy of realizing the decretal amount by way of proceeding against immovable properties of the JDr, arrest of the JDr. cannot resorted to. At the same time, it may be noted that in none of the above judgments, it was stated that arrest of a male judgment debtor in execution of a money decree is illegal. The above decisions only cautioned the lower Courts to consider reasonableness and fairness of ordering arrest of the judgment debtor straightaway. None of the said judgments considered the provision relating to Order XXI Rule 21 CPC which indicates enabling a decree holder to file simultaneous execution petitions.

(3.) Coming to legality and reasonableness of the order passed by the lower Court, admittedly the petitioner is having huge landed property of Ac. 10.00. He has also got business of his own. According to the petitioner's counsel, JDr. is doing repairing business in watches and cell phones. Whereas, the respondent's counsel stated that the petitioner is doing watch business and is having Titan Watch Show room. According to DHr, the petitioner is earning Rs. 30,000/- per month. He has also got his house property which is stated to be worth Rs. 10,00,000/-. The petitioner contended before the lower Court that he was not able to raise any money from his immovable properties as his immovable properties are attached and he was prevented from either selling or mortgaging his properties. There is no prohibition for sale or mortgage of his attached properties in case it is for discharge of the decree debt herein in execution of which the properties were attached. The petitioner is not a 'daridra narayana' as observed by the Supreme Court in Jolly George Varghese. It is stated that the decree holder is not able to proceed with execution against properties of the JDr. as his brothers filed some petitions in that E.P. and took the matter to this Court and the said E.P. is under orders of stay. When there is stay order, it cannot be said that E.P. against attached properties of JDr. can be proceeded with. The petitioner is dragging on repayment of the decree debt since the year 2002 onwards. Out of total decretal amount of Rs. 5,00,000/-, by the date of E.P., the petitioner is stated to have paid only total sum of Rs. 2,25,000/- till now for the last 11 years. There is only one year left out for filing a fresh E.P. After 12 years of the decree, no fresh E.P. will be maintained as it would be barred by limitation. This present petitions in the lower Court are only intended to drag on the execution proceedings to the extent possible without paying balance of decretal amount of Rs. 2,75,000/-. The petitioner appears to be a chronic litigant. In these circumstances, the lower Court is justified in passing arrest order against the JDr. I find that order of arrest passed by the lower Court in this case is just, legal, reasonable and fair. It is only the conduct of the JDr. which is unfair, he having abundant means to repay the debt is evading and refusing to pay the same. The order passed by the lower Court refusing to recall the warrant is justified. There are no grounds to recall warrant against the petitioner/JDr. who has not honoured Lok Adalat award in which he undertook to pay the decretal amount in instalments. In the result, both the revision petitions are dismissed.