KONDA SUBBAIAH Vs. YEDOTI KAMALAKSHAIAH

JUDGEMENT

(1.) THE petitioner filed OS no. 59 of 2005 in the Court of Senior Civil judge, Rajampet, against the respondent, for recovery of certain amount. The suit was decreed on 24. 7. 2006. After the decree became final, the petitioner filed EP No. 50 of 2007, under Order 21 Rule 37 CPC, alleging that, in spite of possessing adequate means, the respondent failed to pay the decretal amount. Notice was issued to the respondent, and he filed a counter-affidavit. He admitted that, he possessed lands, but pleaded that they are not yielding any income. He has also taken the plea that he is a small farmer. The trial Court dismissed the EP, through order dated 9. 1. 2008, on the ground that the petitioner failed to discharge his burden, to prove that the respondent had adequate means.

(2.) SRI J. Sreenivasa Rao, learned counsel for the petitioner, submits that the very approach of the Executing Court, requiring the petitioner to prove beyond any reasonable doubt, that the respondent has adequate means, to discharge the decree; is contrary to law. He contends that, in matters of this nature, the duty of the decree-holder ends, where he establishes prima facie, that the judgment-debtor had valuable property. It is also his case that though the respondent has made a vague and uncertain statement that he is a small farmer, he did not utter a word in the deposition, and there was no basis for the Executing Court to dismiss the EP.

(3.) SRI Balaji Medamalli, learned counsel for the respondent, on the other hand, submits that when his client has taken the plea that he does not possess adequate means to discharge the decree, it was for the petitioner to prove the otherwise. He contends that when the personal liberty of the respondent is involved, meticulous care was required to be taken, and the executing Court decided the matter in accordance with law.