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2001 DIGILAW 1654 (MAD)

A. Chetty v. A. Rangan

2001-12-18

V.KANAGARAJ

body2001
ORDER: This civil revision petition is directed against the fair and decretal order dated 6.9.2001 made in E.P. No.53 of 2000 in O.S. No.340 of 1995 by the Court of District Munsif, Dharmapuri thereby allowing the application filed by the plaintiff under O.21, Rules 22, 37 and 38 seeking arrest and detention in the civil prison of the petitioner herein. 2. Tracing the history of the case, it comes to be known that the respondent herein who is the plaintiff is the decree-holder in the suit in O.S. No.340 of 1995 wherein the decree amount is Rs.18,204; that the revision petitioner has got property worth Rs.75,000 which is fetching income of Rs.2,000 per year; that he is receiving a salary of Rs.7,000 per month and in spite of having the capacity to pay the decree amount, he has failed to do the same and hence praying for arrest and detention in civil prison. 3. In the counter filed before the lower Court the revision petitioner/ respondent denied the allegations of the petition that he has got properties valued at Rs.75,000 and on that annual income is Rs.2,000 having monthly income of Rs.7,000 and inspite of having such income he is not paying the decree amount. He would further allege that only to harass him the plaintiff has filed the petition without proceeding to attach the salary of the petitioner; that too for giving him problems in his Government job he has wilfully come forward to arrest the petitioner which is contrary to law and hence would pray to dismiss the petition with costs. To set aside the decree, the revision petitioner making all efforts. 4. The Court below having framed proper points for consideration and determination and having its own discussions found that the revision petitioner/ respondent is working as a Assistant in the local telephone department drawing a monthly salary for Rs.7,000 besides having his own house. Therefore, in spite of having all the facilities to repay the decree amount, since the revision petitioner is not willing to do the same, there is nothing wrong in initiating the arrest proceedings against him and thus allowed the application. 5. Therefore, in spite of having all the facilities to repay the decree amount, since the revision petitioner is not willing to do the same, there is nothing wrong in initiating the arrest proceedings against him and thus allowed the application. 5. During arguments, learned counsel for the revision petitioner has submitted the respondent had filed an application for arresting only with a view to harass the revision petitioner; that the petitioner has already paid part of the decree amount; that the lower Court failed to see that the petitioner had not wilfully defaulted in payment of the decree amount, that without exhausting other ways and means or recovering the decree amount, the respondent/ decree-holder has all of a sudden jumped to cause the arrest of the petitioner which is erroneous. The lower Court also has erred in not only holding that the petitioner a salary per month is Rs.7,000 but also in giving finding that he is owning a house; that the learned District Munsif also erred in simply accepting the case of the respondent without any offence to conclude in the manner it has concluded. 6. At this juncture, the learned counsel for the revision petitioner also cited, the following judgments in support of his case. 7. In a decision reported in Iyyam Perumal v. Chinna Gounder, (1984)1 M.L.J. 195 , the learned single Judge of this Court has revised the order of arrest wherein an ex parte order of arrest was made. 8. In another decision reported in Thavasiappa Gounder v. A.C.Narayanaswamy, (1986)2 M.L.J. 300 , the learned single Judge of this Court has held that: “.....execution by the detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied about the circumstances specified in the proviso........” 9. In a decision reported in V.Ganesa Nadar v. K.Chellathai Ammal, (1987)2 M.L.J. 25 , the single Judge of this Court has held that: “.....Merely because judgment-debtor possesses immovable property, an order for detention in civil prison cannot be made for his failure to pay”. 10. In a decision reported in V.Ganesa Nadar v. K.Chellathai Ammal, (1987)2 M.L.J. 25 , the single Judge of this Court has held that: “.....Merely because judgment-debtor possesses immovable property, an order for detention in civil prison cannot be made for his failure to pay”. 10. In a decision reported in Arjuna Gounder v. Govindaraju Reddiar, (1990)2 M.L.J. 411 , this Court has held that: “....Court must be satisfied that judgment-debtor having had opportunity to obey decree has wilfully failed to obey it and the Court should give finding to that effect. In he absence of such filing, the offer will be a nullity.” 11. In a decision reported in P.Azeez Ahmed v. State Bank of India, Vaniyambadi, (1988)2 L.W. 64 , this Court has held that: “......Ex parte order of arrest of judgment-debtor without properly ascertaining his means to pay, the order is not sustainable.” 12. In a last cited decision reported in A.Mani v. Chandranath, (1993)1 M.L.J. 597 , the learned single Judge of this Court has held that: “......Arrest of the judgment-debtor for non payment of decree amount, reason must prevail.” 13. In the above cited judgments to suit the facts and the circumstances there in the Courts have held that either an opportunity of being heard should be afforded for the judgment-debtor or on a show cause notice he must be afforded with an opportunity to pay the decree amount or that the judgment-debtor shall be allowed to exhaust his other remedies of making the payment or else the reasons based on which the arrest is ordered must be set out in the order and mostly the judgment-debtor must be allowed to have all possible means and ways to pay the decree amount prior to resorting to cause his arrest for non payment. 14. It is not the case of the revision petitioner that he is not aware of the passing of decree by the trial Court nor is it his case that he has testified the validity of the decree thus passed by the trial Court in the upper forms of law nor that he as not been given any other opportunities to make payment of the decree amount. But his case is quite legal in the sense that prior to resorting to cause the arrest of the judgment-debtor, the other avenues open for the decree-holder should have been exhausted and straight away the arrest of the petitioner for being kept in civil prison for non payment of the decree amount cannot be ordered. 15. In short, only fair opportunity of showing cause as to whey the judgment-debtor should not be detained in the civil prison for non-payment of the decree amount should be issued by the lower Court prior to causing his arrest by calling upon the judgment-debtor to appear before the Court to show cause why he is not committed to civil prison, whereas in the case on hand, a full enquiry itself has been held on the petitioner seeking for causing the arrest of the petitioner for non payment of the decree amount with full opportunities for the judgment-debtor to exhaust all his remedies and therefore in such event, other formalities are not at all necessary since the attachment of the properties of the judgment-debtor has to be resorted to or the arrest of the judgment-debtor to be caused for committing him in the civil prison is purely at the discretion of the decree-holder since he is at liberty to proceed in the Courts whichever is easier for him to recover the decree amount. 16. The propositions held in this record by the Courts are all only suggestive and recommendatory in nature and there cannot be a precondition imposed on the decree-holder that only after exhausting other remedies ultimately he must seek the remedy of causing the arrest of the judgment-debtor for committing him in the civil prison for non payment of the decree amount. The decree-holder is at liberty to seek for any mode of relief which is earlier for him to recover the decree amount. The decree-holder is at liberty to seek for any mode of relief which is earlier for him to recover the decree amount. Even in the case on hand, the revision petitioner cannot say that he is out of knowledge of the decree passed against him and unless show cause notice is issued or attachment proceedings are initiated, his arrest may not be resorted to since he has denied in his counter having been in possession of any other property or even the salary of Rs.7,000 alleged to be drawn by him and in the given facts and circumstances, this Court is left with no option to justify the lower Court order which causes the arrest in order to commit him in the civil prison and hence the respondent has failed the application for arrest of the petitioner and the same has been ordered accordingly by the lower Court. 17. In the above circumstances, the interference of this Court sought for by the revision petitioner into the will considered and merited order of the lower Court is not only unnecessary but unwarranted as well. 18. In result, the above civil revision petition fails and the same is dismissed. No costs. Consequently, connected C.M.P. is also dismissed. “The fair and decretal order dated 6.9.2001 made in E.P. No.53 of 2000 in O.S. No.340 of 1995 by the Court of the District Munsif, Dharmapuri is hereby confirmed”.