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1986 DIGILAW 55 (MAD)

V. T. v. Ramaswami Chettiar VS T. P. T. Perumal Chettiar

1986-01-30

K.SHANMUKHAM

body1986
JUDGMENT K. Shanmukham, J. 1. The judgment-debtor is the petitioner. He claimed protection under Tamil Nadu Act 13 of 1980 in the execution proceedings initiated by the decree-holder In E.P. No. 387 of 1982 in as. No. 897 of 1979. The learned District Munsif held that the petitioner has not proved that he is entitled to the benefits' adumbrated under the Act and therefore ordered the execution as prayed for by the decree-holder. Hence, this revision. 2. Learned Counsel for the petitioner would refer to a certificate according to which his three immovable properties would be worth about Rs. 7,000 and also his counter statement stating that he owns property worth Rs. 7,000 only and that he is eking out his livelihood as a cootie, immediately it is relevant to point out that the petitioner herein had not disclosed his income as a coolie. This apart except producing a certificate marked as Ex. B1, dated 23.3,1983, the petitioner himself has not gone into the witness box. This is enough for the Court below to have rejected his contention that he is entitled to the benefits under Tamil Nadu Act 13 of 1980. I have already referred to the fact that in the counter, the petitioner did not disclose his income as a coolie. No doubt, it is for the decree-holder to prove that the petitioner falls within any one' of the exceptions in Section 3{d) of the said Act. If a judgment-debtor should own immovable property in this State or elsewhere, the value of which should exceed Ra. 25,000 he would not be entitled to the benefit under this Act. Therefore, It is for the decree-holder to have established that the judgment debtor owns immovable properties worth more than Rs. 25,000. in this case, there are three house properties owned by the judgment-debtor. It is true according to Ex. R1 they are valued at Rs. 7,000. It must be pointed out at this stage that that was an assessment by Town Fanchayac Pannaikkadu. The Court can take judicial notice of the fact that the landlords do not generally disclose the real income realised from the property. Therefore, Ex. R1 will not be a safe guiding factor to assess the value of three house properties, it is here, non-examination of the petitioner becomes relevant. Further, he had not disclosed the rents realised from these properties. Therefore, Ex. R1 will not be a safe guiding factor to assess the value of three house properties, it is here, non-examination of the petitioner becomes relevant. Further, he had not disclosed the rents realised from these properties. The suppression of all these factors and non-examination of the judgment-debtor, the petitioner herein will enable the decree-holder to submit that the properties are really worth more than Rs. 20,000 and that the petitioner Is not a debtor within the meaning of the said Act. The law is well-settled that though the burden is on the decree-holder to prove that the debtor falls within any one of the exceptions as stated supra, yet, if the judgment-debtor who has within his special knowledge certain facts and who is in exclusive possession of the documents, failed to examine himself and should withhold the document in his possession, he cannot turn round and say that the decree-holder has not discharged his burden. Thus, I find, the Court below has rightly held that the petitioner is not entitled to the benefits under the Act. 3. Accordingly, the revision is dismissed with costs.