1. This civil revision petition under Section 115 C.P.C is directed against the order dated 08.09.2017 in E.P.No.248 of 2012 in O.S.No.769 of 2006, on
the file of the Principal Junior Civil Judge, Khammam, wherein the said petition filed by the petitioner herein under Order XXI Rule 37 CPC to commit
the judgment debtor to civil prison for realization of the EP amount, was dismissed.
2. Heard learned counsel for the petitioner. None appeared for the respondents. Perused the record.
3. The petitioner herein filed O.S.No.769 of 2006 before the II-Additional Junior Civil Judge, Khammam for perpetual injunction against the
respondents. The said suit was decreed on 18.06.2007. The petitioner filed E.P.No.248 of 2012 under Order XXI Rule 37 CPC to commit the
judgment debtor to civil prison for realization of the decretal amount. The executing court dismissed the execution petition after conducting due enquiry
and holding that there is no evidence regarding interference caused by the judgment debtors with possession of the decree holder over the schedule
property.
4. Learned counsel for the petitioner submits that the court below had committed error in dismissing the execution petition holding that the decree
holder failed to substantiate his possession over the schedule property. Learned counsel further submits that the executing court should not have gone
beyond the decree and the executing court committed jurisdictional error in holding that the decree holder failed to prove his possession over the EP
schedule property and that the revision is liable to be set aside. Learned counsel placed reliance on the decision of the Apex Court in RAHUL S
SHAH v. JINENDRA KUMAR GANDHI & ORS. AIR 2004 AP 518 and also an unreported decision of this court in C.R.P.No.575 of 2011.
5. Section 51 and Order XXI Rule 37 CPC provides for arrest of a judgment debtor, in the event of his failure to discharge the obligation, despite
possessing adequate means.
6. In KASI SUBBAIAH MUDALI v. KASI VEERASWAMY MUDALI, (supra), this Court had an occasion to delve into the procedure prescribed
under Order XXI, Rule 37 C.P.C., and the importance of various steps provided therein, in the matter of arrest. It was held inter alia as under:
Para-7. A plain reading of Rule 37 would show that it contemplates 3 situations viz.,
(a) The executing Court shall issue notice calling upon the judgment-debtor to appear before the Court on a date to be specified and show-cause as to
why he should not be committed to civil prison. (Rule 37(1)).
(b) The Court can straightaway issue warrant of arrest of the judgment-debtor in case it is satisfied that the delay in issuance of notice under Rule 37
(1) would enable the judgment-debtor to abscond from or leave the local limits of the jurisdiction of the Court, (proviso to Rule 37(1)).
(c) The Court can issue warrant of arrest in case the judgment debtor fails to appear even after the receipt of notice issued under Rule 37(1). (Rule
37(2)).
7. Learned counsel for the petitioner by relying on the decision RAHUL S SHAH ( AIR 2004 AP 518 supra) would submit that the executing court
committed error by traveling beyond the decree. At para 25 of the said decision, the Hon’ble Apex Court held as under:
“These provisions contemplate that for execution of decrees, Executing Court must not go beyond the decree. However, there is steady rise of
proceedings akin to a re-trial at the time of execution causing failure of realisation of fruits of decree and relief which the party seeks from the courts
despite there being a decree in their favour. Experience has shown that various objections are filed before the Executing Court and the decree holder
is deprived of the fruits of the litigation and the judgment debtor, in abuse of process of law, is allowed to benefit from the subject matter which he is
otherwise not entitled toâ€.
8. Thus, after considering the above decision and the statutory provisions stated supra, coming to the instant case, the executing court while dismissing
the execution petition held at para 14 of the impugned order as under:
“The decree holder though pleaded that he was in possession of E.P schedule property, he has not filed single piece of document to substantiate
that he is in the possession of the EP schedule property and in turn admitted that the EP schedule property though fell to his share, the same is
cultivated by the judgment in debtors since 2007 onwards. Therefore, when the Judgment Debtors, are in the possession of the EP schedule property,
the question of interference by the judgment debtors does not arise. Though P.W.2 deposed in his chief affidavit with regard to the interference
caused by the Judgment Debtors over the EP schedule property on 05.07.2012, but he admitted that he do not know the boundaries of the EP
schedule property. As such, the evidence of the P.W.2 is of no use to the Decree Holder when P.W.2 is not having knowledge about the boundaries
to the EP schedule propertyâ€.
9. The executing court has to necessarily follow the procedure explained above while proceeding with an application under XXI Rule 37 CPC. It
appears from the order impugned that the executing court had committed error by stating that the decree holder failed to file a single piece of
document to substantiate that he is in possession of the EP schedule property. When the decree holder is having a decree of perpetual injunction in
O.S.No.769 of 2006 in respect of the schedule property, he again need not prove by way of oral or documentary evidence that he is in possession of
the property. The civil court has granted a decree in O.S.No.769 of 2006 by granting perpetual injunction and directed the respondents-judgment
debtors from interfering with the peaceful possession of the petitioner-decree holder over the suit schedule property. The decree holder has to place
evidence and also has an obligation to prove his contention in respect of his plea that the respondents-judgment debtors have interfered with his
possession over the EP schedule property on 05.07.2012 at 09:00 am.
10. Normally, in execution proceedings otherwise than through arrest, there is no burden cast upon the decree holder to prove any other fact. Since
the liberty of a citizen is involved, law places a further obligation upon the decree holder to prove certain facts as contemplated under Rule 40(1), that
too, in the presence of a judgment debtor. The executing court ought to have exhibited care and caution to ensure that each step is followed
scrupulously. The executing court apparently committed error by observing at para 14 as above and the same clearly shows that there was deviation
from the prescribed principles of procedure. The impugned order is liable to be set aside and the same is, accordingly, set aside.
11. In the result, the civil revision petition is allowed. The matter is remanded to the executing court for fresh consideration of E.P.No.248 of 2012 in
O.S.No.769 of 2006 after giving opportunity to both sides and then pass appropriate orders on merits in accordance with law. There shall be no order
as to costs.
12. Miscellaneous petitions, if any pending, stand closed.
