MARKAPURAM PRASAD Vs. MADA SUBBARAIDU

JUDGEMENT

(1.) This Civil Revision Petition is directed against the order dated 31-01 -2004 passed in E.P.No. 478 of 2002 in O.S.No. 594 of 2001, on the file of Principal Junior Civil Judge, Cuddapah, by which the learned Principal Junior Civil Judge ordered detention of the Judgment-debtor in civil prison.

(2.) The petitioner is the judgment-debtor and the respondent is the decreeholder in E.P.No. 478 of 2002 in O.S.No. 594 ot 2001. The decreeholder filed E.P.No. 478 of 2002 for realization of the decretal amount and sought for detention of the judgment-debtor in civil prison. It is the case of the decreeholder that the judgment-debtor having sufficient means to discharge the decretal debt neglected and avoided to pay the same. The executing Court issued notice to the judgment-debtor under Order 21 Rule 37 of the Code of Civil Procedure (for short 'the Code") in the format prescribed in Form No. 12 of Appendix E of Code. The judgment-debtor entered appearance and filed counter stating that he has no means to pay the decretal amount and has no source of income and has no properties either movable or immovable and therefore he is not liable to be detained in civil prison and thus sought for dismissal of E.P. with costs. The decreeholder besides examining himself as P.W-1 examined one P. Nagaraju as P.W-2 and marked two documents as Exs. A-1 and A-2 to prove the means of the judgment-debtor. Ex. A-1 is the registered sale deed dated 06-05-2003 and Ex.A-2 is the valuation certificate issued by the Sub- Registrar. The judgment-debtor did not choose to adduce evidence, either ocular or documentary, to substantiate his plea of no means to pay the decretal amount. The executing Court on considering the evidence brought on record and on hearing Counsel for both the parties recorded a finding that the judgment-debtor having sufficient means to discharge the decretal debt neglected to pay the same and accordingly ordered detention of the judgment-debtor in civil prison. Assailing the order dated 31 -07-2004 passed in E.P.No. 478 of 2002, the judgment-debtor has filed this Civil Revision Petition.

(3.) Learned Counsel appearing for the petitioner/judgment-debtor submits that the order of detention of the petitioner in civil prison is not preceded by a show cause notice as contemplated under Order XXI Rule 40 of the Code and therefore the impugned order is liable to be set aside. He also submits that the impugned order is liable to be set aside since it does not indicate the period of detention. His further submission is that the detention of the judgment-debtor in civil prison without resorting to the recourse of realization of the decretal amount by bringing the properties of the judgment-debtor to sale is not legal and proper and therefore the impugned order is required to be set aside. In support of his submissions he placed reliance on the decisions of our High Court in Suravarapu Putrayya v. Muddukuri Veerraju T. Doraswamy Reddy v. K. Kodanda Naidu, Kalidindi Rama Raju v. Vijaya Bank, K. Vijayakumar v. N. Gururajarao and S. Ismail v. Agraseni Chit Funds (P) Ltd.