SOMISETTY BALAVENKATA SUBBAIAH SHETTY Vs. P SREENIVASULLU SETTY

JUDGEMENT

(1.) Revision petitioner after obtaining a succession certificate, filed an E.P. for recovery of the amount covered by a money decree obtained by his father, seeking arrest of the respondent(judgment debtor) in which the respondent filed a counter contending that as he paid Rs.26,000/- to the father of the revision petitioner in full satisfaction of the decree the E.P. is not maintainable-4 on 18-11-1998 and obtained a receipt, and in any event since he has no means to pay the decretal amount, he cannot be arrested.

(2.) In support of his case, the revision petitioner besides examining himself as P.W.1, examined lncome-Tax Inspector as P.W.2 and marked Ex.A.1 and Exs.X.l and X.2. Respondent examined himself as R.W.1 and two other witnesses as R.Ws.2 and 3 and marked Exs. B.1 to B.12. The Executing Court held that the discharge pleaded by the respondent under Ex.B.1 cannot be taken into consideration as it is not a certified payment and as the revision petitioner failed to establish that respondent has means to pay the decretal amount and refused to pay the same and since it is also the contention of the revision petitioner that respondent is having immovable property, E.P. for arrest of the respondent, without proceeding against the immovable properties is not maintainable and dismissed the E.P. Hence this revision.

(3.) The contention of the learned counsel for the revision petitioner is that the executing Court having correctly held that Ex.B.l cannot be taken into consideration, was in error in observing that the revision petitioner failed to establish that the respondent having sufficient means had neglected and refused to pay the decretal amount, when the evidence adduced by the revision petitioner clearly establishes that the respondent returned an income of more than Rs.70,000/- for the assessment year 2001-02. The contention of the learned counsel for the respondent is that since the executing Court clearly held that there is no evidence regarding the 'present means' of the respondent, which is very relevant for deciding whether he can be arrested or not, in view of the ratio in Jolly George Varghese v. Bank of Cochin, 1980(2) SCC 360 and since in Pothuneedi Laxmana Rao v. Kadasu Muneswara Rao, 2005(4) ALD 833 it is clearly held that the decree holder has to exhaust the other modes of execution available to him before seeking arrest of the judgment debtor, and since the decree holder had already got attached immovable property of the respondent and is bringing it to sale, the E.P. becomes infructuous and so, the revision petitioner is not entitled for any relief in this revision. In reply the contention of the learned counsel for the revision petition is that after dismissal of the E.P. for arrest by the executing Court by the order under revision, the revision petitioner had to file another E.P. and got attached the immovable properties of the respondent and that fact is not relevant for deciding this revision.