JUDGMENT
D.H. Nasir, J.
1. Heard the learned Counsel for the Revision Petitioner. Respondents not represented.
2. This Civil Revision Petition is directed against the order passed in E.P.No. 51/90 in O.S.No. 95/87 dated 3-7-1995 holding that the Execution Petitioner failed to establish that the Judgment-Debtor was in possession of sufficient means for satisfying the decretal dues and hence not liable to be arrested.
3. The Executing Court in the 3rd part of para 11 of the impugned order observed that the Decree Holder in his cross-examination admitted that the Judgment-Debtor was a small farmer, that he was doing business in Kanchili with a daily turn over of Rs. 10,000/- and that the was paying Sales-tax as well as Income-tax for his business. The learned Judge further observed that the burden of proof shifted to the Decree Holder to show that the annual income of the 1st Judgment-Debtor other than agricultural income was more than Rs. 1,200/-; but the Decree Holder merely stated in his examination-in-chief that the 1st Judgment-Debtor was doing business and that he was earning a profit of more than Rs. 100/- per day from his business. Further, according to the learned Judge, the Decree Holder also stated that the Judgment-Debtor was financially sound to discharge the decretal dues, but he did not care to say what that business was and what was the financial soundness of the 1st Judgment-Debtor. He also did not mention about the annual income of the 1st Judgment-Debtor. Except his oral evidence without any reference to any particular business, the learned Judge recorded his satisfaction in the impugned order that the 1st Judgment-Debtor was a small farmer and hat he had no annual income exceeding Rs. 1,200/- from sources other than the agricultural income and, therefore, the learned Judge recorded his finding that the Execution Petitioner failed to establish that the Judgment-Debtor had sufficient means of income and on that ground he was pleased to dismiss the Execution Petition.
4. under Order 21 Rule 37(1) of the Civil Procedure Code, it is provided as follows:-
“37(1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a Judgment-Debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison.”
5. From perusal of the impugned order, it appears that the notice of Execution Petition was sent to Respondents 1 and 2 under Order 21 Rule 16 CPC and the matter was directed to be posted on 20-12-1990. Respondents 2 and 3 remained absent on that day and were set ex parte. A. Counsel filed vakalat for Respondent No. 1/Judgment-Debtor No. 1 and prayed for time for filing counter; but he failed to appear before the Court and, therefore, he was set-exparte on 12-3-1991. Thereafter, on 18-4-1991 the Execution Petitioner was examined. Again on 17-12-1993 the Judgment-Debtor No. 1 remained absent and he was set ex parte. The Execution Petitioner Was examined as P.W.I on the same day. The arrest warrant under Order 21 Rule 38 CPC was also ordered to be issued against Judgment-Debtor No. 1 and the matter was directed to be posted on 19-1-1994. On 18-1-1994, the Judgment-Debtor No. 1 was arrested and produced before the Court. He was ordered to be kept in custody and the matter was directed to be posted again on 19-1-1994. Judgment-Debtor No. 1 furnished 3rd party security bond and also executed a bond for Rs. 12,000/-. Thereafter, at the request of the said Judgment-Debtor, he was released and the matter was directed to be posted on 2-2-1994 for payment. In the meantime the Judgment-Debtor filed E.A.No. 2/94 under Order 21 Rule 105 CPC to set-aside the ex parte order dated 17-12-1993. The same was allowed on 23-2-1994 setting aside the ex park orders dated 17-12-1993. Thereafter, the matter stood adjourned from time to time and ultimately the enquiry was closed on 30-6-1995.
6. The learned Judge of the Executing Court further observed in his impugned order that after the closure of the oral testimony of P.W.I, the Judgment-Debtor No. 1 examined himself as R. W. 1 on 23-2-1995 and thereafter he remained absent without offering himself for completion of his evidence and, therefore, the evidence recorded in the examination-in-chief of the Judgment-Debtor No. 1 in part was closed and was ordered to be eschewed on 16-6-1995.
7. The learned Judge thereafter raised a question in para 7 of his impugned order whether the order of arrest under Order 21 Rule 37(2) CPC was liable to be issued or not for arrest and detention of Judgment -Debtor No. 1. He farther observed that notice under Order 21 Rule 22 CPC regarding the filing of the Execution Petition after the expiry of two years from the date of the decree was issued, but at that stage also, the Judgment-Debtor No. 1 after filing his counter, did not choose to prove the contentions raised by him and eventually he was set ex parte by the Court and it was held that there were no objections which could reasonably be considered against the execution of the decree. Thereafter, another notice was issued under Order 21 Rule 37 CPC to the Judgment-Debtor No. 1 to show cause why he should not be arrested and sent to Civil prison for realisation of the decretal amount. The Counsel for the Decree Holder submitted that it was proved beyond doubt from the oral testimony of P.W.I that in spite of sufficient means, the Judgment-Debtor No. 1 avoided to make payment of the amount due and payable under the decree and, therefore, the Counsel prayed for issuing warrant of arrest against the Judgment-Debtor No. 1.
8. Before the Executing Court, the learned Counsel for the 1st Judgment-Debtor argued that the decree was not executable in view of the fact that the transfer was not proved by the Decree Holder. He also urged that the Execution Petitioner had miserably failed to prove the means of Judgment-Debtor No. 1 end even in support of the Decree Holder’s contention that the 1st Judgment-Debtor was running business and had landed properties, he did not place any proof of allegations made against the Judgment-Debtor.
9. I am, however, unable to appreciate the reasoning in the impugned order for coming to a conclusion that the 1st Judgment-Debtor was not liable to )be arrested in execution of a decree against him. It could be seen from the provisions of Sub-rule (2) of Rule 37 Order 21 CPC that in a case where appearance is not made in obedience to the notice, the Court has to direct, of the decree holder so requires, a warrant for arrest of the Judgment-Debtor to be issued. under Order 21 Rule 38, every warrant for the arrest of a Judgment-Debtor has to be issued with a direction to the Officer entrusted with its execution to produce the Judgment-Debtor before the Court with all convenient speed unless the amount which has been ordered to be paid together with interest thereon and the costs (if any) which he is liable to pay is paid by him either at the time of his arrest or before that date. under Rule 40(1) of the said Order, when a Judgment-Debtor appears before the Court in obedience to a notice issued under Rule 37, or is brought before the Court after being arrested in execution of a decree for the payment of money, the Court is required to proceed to hear the Decree Holder and to take all such evidence as may be produced by him in support of his application for execution and shall then give the Judgment-Debtor an opportunity of showing cause why he should not be committed to the civil prison. Upon the conclusion of the enquiry under Sub-rule (1), the Court may subject to the provisions of Section 51 and to the other provisions of this Code, make order for the detention of the Judgment-Debtor in the civil prison and shall in that event cause him to be arrested if he is not already under arrest.
10. under Sub-rule (1) of Rule 41 of Order 21 of CPC, it is provided that where a decree is for the payment of money the decree holder may apply to the Court for an order that-
(a) the judgment-debtor, or
(b) where the judgment-debtor is a Corporation, any officer thereof,
(c) or any other person,
be orally examined as to whether any or what debts are owing to the Judgment-Debtor and whether the Judgment Debtor has any and what other property or means of satisfying the decree; and the Court may make an order for the attendance and examination of such judgment-debtor, or officer or other person and for production of any books or documents. under Sub-rule (2) of Rule 41 of the said Order, it is provided that where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree holder and without prejudice to its power under Sub-rule (1), by order require the judgment-debtor or where the Judgment-Debtor is a Corporation, any officer thereof, to make an affidavit stating the particulars of the assets of judgment-debtor. Sub-rule (3) of Rule 41 of Order 21 provides that in case of disobedience of any order made under Sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.
11. It would thus appear from the provisions of Rule 41 of Order 21 of CPC that the Judgment-Debtor is required to show whether he has any and what other property or means of satisfying the decree for enabling the Court to arrive at a conclusion whether the Judgment-Debtor is liable to be detained in civil prison. A satisfaction is required to be rendered to the Court whether any or what debts are owing to the Judgment-Debtor and whether the Judgment-Debtor has any and what other property or means of satisfying the decree after orally examining the Judgment-Debtor. In the instant case, the Judgment-Debtor has been sufficiently put on notice but he has failed to discharge the burden cast upon him by the provisions of Rule 41 of Order 21 of C.P.C. Since the Judgment-Debtor has failed to discharge his burden and the Decree Holder’s decree for payment of money has remained unsatisfied for a period of thirty days, the Judgment-Debtor incurred the liability of being detained in civil prison . The burden is entirely cast upon the Judgment-Debtor to render the aforesaid satisfaction to the Court. In that view of the matter, therefore, the finding recorded by the Executing Court that the petitioner failed to establish the means of the 1st Judgment-Debtor is erroneous and is not supported by the provisions of law relating to detaining the Judgment-Debtor in civil prison.
12. I am supported in my views by the decision of this High Court in the case of V. Appalaswamy v. G. Ramanamma, 1984 (2) APLJ 229 in which it is held that-
“In order to be regarded as a small farmer, it is imperative on the part of the judgment-debtor to state the extent of the non-agricultural income during the relevant period in order that he does not fall within the exclusionary clause in Section 3 (t) of the Act. In the absence of any such claim by the Judgment-Debtor there is no obligation on the decree holder to show that the house-hold (non-agricultural) income of the Judgment-Debtor during the years 1974 and 1975 exceeded Rs. 1200/- per year.”
13. The same view is expressed by a subsequent decision of this High Court in Karri Venkata Rama Reddy v. Megalapu Viswanatham, in which it is held-
“The debtor should first enter into the witness box and produce prima facie proof that he is entitled to the benefits of Act 7 of 1977 i.e., the debtor falls within the definition of Section 3(j). Thereafter, the onus shifts to the creditor, Under Section 13, to establish that the debtor is not entitled to the benefits of the Act.”
14. The term ‘small farmer’ is defined in Section 3(t) of the A.P. Agricultural Indebtedness (Relief) Act, 1977 as under:
” (t) ‘small farmer’ means a person whose principal means of livelihood is income derived from agricultural land and who holds and personally cultivates, or who cultivates as a tenant or share cropper or mortgagee with possession, agricultural land which does not exceed in extent,-
(i) in the case of persons other than the members of the Scheduled Tribes, one hectare, if it is wet, or two hectares, if it is dry;
(ii) in the case of the members of the Scheduled Tribes, two hectares, if it is wet, or four hectares, if it is dry but does not include any person whose annual household income, other than from agriculture exceeds one thousand and two hundred rupees in any two years within three years immediately preceding the commencement of this Act.
15. The Judgment-Debtor has not taken any steps to satisfy the Court whether he complied with the above requirements of law so as to claim the benefit available to a small farmer under the said Act.
16. The learned Judge seems to have lost sight of the principle that in execution proceeding the endeavour of the executing Court should be to ensure, as far as possible, that the decree of the Court is not put to any jeopardy and the fiat of the Court or the process of the Court is respected and fructified rather than defeated on flimsy grounds; more so in a case where the Judgment-Debtor is playing truant with the Court by frequently absenting himself from the Court with a view to fleeing from the liability to pay the decretal dues.
17. In the above view of the matter, therefore, the finding recorded by the Executing Court that the petitioner failed to establish the means of the Judgment-Debtor No. 1 is erroneous as stated above. The Civil Revision Petition is allowed and the impugned order of the Executing Court is hereby quashed and set aside. The Decree Holder shall be at liberty to proceed with the execution proceedings in accordance with law. No costs.