THE HON'BLE SRI JUSTICE DALAVA SUBRAHMANYAM Civil Revision Petition No. 529 OF 2001 30.4.2003 Kasava Venkat Reddy Syed Basha and others Counsel for the petitioner: Sri S.C.Rangappa Counsel for the respondents: Sri C.Sadasiva Reddy. :ORDER: The revision petitioner filed the revision against the order dated 6.7.2000 passed in I.P.No. 4 of 1998 on the file of the Senior Civil Judge, Proddatur in adjudging the petitioner Syed Basha as insolvent. 2. The brief facts of the case are as follows: Syed Basha filed I.P 4 of 1998 on the file of the Senior Civil Judge, Proddatur praying to adjudge him as insolvent under the provisions of the Provincial Insolvency Act (for short 'the Act') contending that he was running a welding shop at Proddatur and he incurred heavy debts. While doing welding work his eye sight was affected and therefore he sold away his machinery and at present he was doing brokerage in selling the engine parts and motors and getting a sum of Rs. 30/- or Rs. 40/- per day. Though he had no sufficient means to maintain his family, the revision petitioner, who was first respondent in I.P 4 of 1998, filed execution petition and obtained orders of arrest in E.P.No. 27 of 1995 and hence he was constrained to file I.P since he was not in possession of any property except the wearing apparel. The revision petitioner, who is the first respondent, filed counter denying the averments and contended that Syed Basha possessed sufficient means and property worth Rs. 5,00,000/- and he was evading to pay the decree debt. On behalf of the petitioner, Pws 1 to 3 were examined and Ex.X1 and X2 were marked. The first respondent examined himself as Rw1 and on his behalf Ex.B1 to B9 were marked. After appreciating the entire evidence, the Senior Civil Judge, Proddatur came to the conclusion that the petitioner was liable to be adjudged as insolvent and accordingly the petition was allowed. 3. Aggrieved against the orders passed in I.P.No. 4 of 1998, the revision petitioner filed the present revision contending that the Court below failed to note that the respondent-petitioner had sufficient means to pay the decree debt and has got substantial properties. The Court below failed to appreciate the observations made in the execution petition filed by the revision petitioner for arrest of the respondent. The lower Court failed to appreciate the admissions made by the witnesses and came to an erroneous conclusion. For the above said reasons, the revision may be allowed. 4. Now the point for consideration is whether the Senior Civil Judge, Proddatur committed any error in coming to conclusion that the petitioner in I.P.No. 4 of 1998 was liable to be adjudged as insolvent and if so whether the revision petition is liable to be allowed? 5. The first respondent, who is the petitioner in I.P.No. 4 of 1998 filed the petition praying to adjudge him as insolvent under the provisions of the Act. He was examined as Pw1 and deposed that he was running welding shop and since he lost his eye sight due to splinters while doing welding work, he underwent operation and spent a sum of Rs. 10,000/- He sold away his machinery and the properties. He is doing brokerage and earning a sum of Rs. 60/- or Rs. 70/- per day. He has no other source of income. Since the respondent-decree holder obtained orders of arrest against him in E.P.No. 27 of 1995 he was constrained to file I.P. Pw2 is another independent witness who deposed with regard to the fact that the petitioner sold away his welding shop as he had to undergo eye operation and that the parents of his wife purchased the house which was sold by the petitioner. The wife of the petitioner was examined as Pw3 and she deposed that her husband sold away the house property and subsequently her parents purchased the same house in her favour. Her mother and brothers advanced the money for purchasing the said house and gave it to her. Now,her husband is doing brokerage and earning a sum of Rs. 50/- to Rs. 60/- per day. The revision petitioner who is the first respondent was examined as Rw1 and deposed that the petitioner sold his house in favour of Zareena Begum benami and later obtained a sale deed in favour of his wife nominally. He is in possession of the house bearing D.No. 17/536 and with a view to evade the payment under the decree, he created the documents. The Municipal records would prove that the house stands in the name of the petitioner. The petitioner has got sufficient means and properties to pay the debt and therefore the petition may be dismissed. 6. The learned Senior Civil Judge after appreciating the entire evidence came to the conclusion that the petitioner was liable to be adjudged as insolvent. The learned Advocate appearing for the revision petitioner contended that the lower appellate Court failed to appreciate the entire evidence on record. It is argued that in the Execution Proceedings it was observed that the petitioner had sufficient means to pay the decree debt and after enquiry arrest was ordered. The lower Court failed to note that the properties stand in the name of the petitioner in the Municipal records and that he is residing in the very same property which is in dispute. 7. Syed basha filed the petition under the provisions of the Provincial Insolvency Act to adjudge him as insolvent. The main ground on which he filed the petition is that the first respondent Kasa Venkat Reddy, who is the revision petitioner, obtained an order of arrest in execution of the decree obtained by him. Though Syed Basha contested the execution proceedings arrest was ordered. It is the contention of Syed Basha that as on today he has no means to pay the decree debt and since an order of arrest has been ordered by the Execution Court, he filed the petition. The enquiry under the Provincial Insolvency Act is an independent enquiry and the Insolvency Court has to adjudicate the matter independently. If really, Syed Bash has got both moveable and immovable properties as contended by the revision petitioner, nothing prevented him from attaching and bringing the said properties in execution of his decree. Instead, the revision petitioner filed the petition for arrest of the Judgement Debtor. Though the suit was filed in the year 1991, the revision petitioner has not taken any steps for attaching the immovable property which Syed Basha possessed at that time. As per the evidence on record, Syed Basha was doing welding business and while doing the work of welding splinters fell in his eyes and his eye sight was affected and he was constrained to sell away his shop and the house for undergoing eye operation. Immediately after the alienation, the revision petitioner has not filed any petition under the provisions of the Insolvency Act to set aside the alleged sale on the ground of fraud or alleging that he committed the act of Insolvency. The revision petitioner has not chosen to do the same. Subsequently, as per the evidence of Pw3 her parents intervened and advanced money and purchased the very same property in favour of Pw3 and they are residing in the very same house. In view of the fact that Syed Basha alienated the property in favour of third parties and wife of Syed Basha purchased the very same house, the transaction cannot be presumed to be as benami. 8. The revision petitioner has not filed any documents to prove that Syed Basha has got other properties. There is an undischarged decree in O.S.No. 42 of 1991 against Syed Basha. In view of the arrest warrant pending against him he was constrained to file the insolvency petition. The Senior Civil Judge rightly came to the conclusion that Syed Basha was liable to be adjudged as insolvent. After adjudication, it is open to the revision petitioner to prove that Syed Basha has got substantial assets and the decree can be discharged from out of the said assets. An enquiry has to be conducted by the Official Receiver with regard to the properties held by him and the said properties can be sold for realization of the decree debt. The order passed by the Senior Civil Judge is in accordance with the provisions of the Provincial Insolvency Act and Syed Basha was rightly declared as an insolvent. There are no tenable grounds to interfere with the findings of the lower Court and there are no merits in the revision. Thus, the lower Court has not committed any error in passing the order and hence the revision is liable to be dismissed. 9. In the result, the revision is dismissed confirming the order passed in I.P.No. 4 of 1998 on the file of the Senior Civil Judge, Proddutur. No order as to costs.