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2003 DIGILAW 634 (MAD)

G. Shanmugham v. C. K. Seethalakshmi

2003-04-09

K.GNANAPRAKASAM

body2003
Judgment :- Aggrieved by the order dated 21.3.1987, in E.P.No.2107 of 1992 in O.S.No.5295 of 1980 passed by the IX Assistant City Civil Judge, Chennai against the third defendant-judgment debtor, this revision petition has been filed. 2.The respondent-plaintiff pursuant to the decree dated 4.2.1985 in O.S.No.5295 of 1980, applied for the execution of the decree in E.P.No.2107 of 1992 and sought for an arrest of third defendant namely, G.Shanmugham for the realisation of the amount and the same was resisted by the defendant. In the counter filed by the third defendant it is stated that the decree holder had received the amounts from the other defendants and therefore, the decree had already been satisfied. Without prejudice to the said contention, he has also stated that he has not sufficient means to pay the decree amount and therefore, the execution petition for arrest is not maintainable. 3.Before the Executing Court, one Swaminathan was examined on behalf of the plaintiff-decree holder and the third defendant was examined as RW1 and marked Ex.R1. The Executing Court after considering the entire matter, came to the conclusion that the defendant-judgment debtor has not proved that he has no means to pay the decree amount and allowed the petition. Aggrieved by the same, the third defendant-judgment debtor has filed this revision petition. 4.Heard the learned advocates for the petitioner and the respondent. Learned advocate for the petitioner would contend that though he was employed as a Section Officer-Selection Grade in the University of Madras and drawing a salary of Rs.7,700/- per month, he was taking only a sum of Rs.814/- to his home, after deducting all the expenses and therefore, the revision petitioner was not having sufficient means to pay the decree amount and therefore, the order of arrest sought for by the respondent- plaintiff cannot be granted. 5.On the contrary, the learned advocate for the respondent-plaintiff would submit that the petitioner's employment and his monthly salary as stated, are not in dispute. The take home salary of the defendant is only after several deductions. It is also pointed out that the revision petitioner has not chosen to furnish any particulars of deductions in the counter filed by him, that in the absence of the same, we cannot know what the deductions are. The take home salary of the defendant is only after several deductions. It is also pointed out that the revision petitioner has not chosen to furnish any particulars of deductions in the counter filed by him, that in the absence of the same, we cannot know what the deductions are. It is also further pointed out that the revision petitioner has only contended that he has not sufficient means to pay the decree amount and it is not his case that he has no means at all to pay the decree amount and therefore, the respondent-plaintiff is justified in making the prayer for the arrest of the revision petitioner for the realisation of the amount. 6.As far as the first contention that has been raised by the revision petitioner before the Executing Court that the decree amount has been paid by the other defendants is not canvassed before this court and hence it has become unnecessary to give a finding in that aspect. 7.As far as the other contention of the revision petitioner, that he has no means to pay the decree amount, it is argued that though the revision petitioner draws a salary of Rs.7,700/-, he was taking only a sum of Rs.814/-to his home and it would indicate that he has no means to pay the decree amount. It is also submitted that there was no wilfulness on the part of the petitioner in not paying the amount. In the said circumstances, it is submitted that the respondent-plaintiff cannot seek for an order of arrest. That in order to support his contention, counsel for the revision petitioner also relied upon the case Jolly George Varghese and another -vs.- The Bank of Cochin (1980) 2 Supreme Court Cases 360), wherein it was held that "to cast a person in prison ;because of his poverty and consequent inability to meet his contractual liability is too flagrantly violative of Article 21 unless there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient means and absence of more terribly pressing claims on his means such as medical bills to treat cancer or other grave illness". Facts in the said case, are totally different and therefore, the same is not applicable to this case. Facts in the said case, are totally different and therefore, the same is not applicable to this case. 8.In our case, the fact that the revision petitioner was employed and drawing a salary of Rs.7,700/- in 1997 is not in dispute. The only contention of the revision petitioner is that after meeting all the deductions, he was taking only a sum of Rs.814/- to his home and therefore, he was not having sufficient means to pay the decree amount. The revision petitioner having contended so, has not chosen to furnish the particulars of deductions, it may be towards number of loans taken by the revision petitioner also. Though it has been stated by the revision petitioner that he was taking a sum of Rs.814/- to his home, it is seen that he was residing in a rented house at Madras and also educating his children. The Executing Court posed a question to itself, how it would be possible for a person taking only a sum of Rs.814/- to his home per month, to pay the house rent and also to educate the children and found out an answer by holding, that apart from the monthly salary, there is possibility of other source of income to the revision petitioner, cannot be ruled out and only by which, he was able to run the family. I do feel that if the take home salary is Rs.814/- per month, the revision petitioner could not run the family in the absence of any other income. In any event, it is inferred that the revision petitioner is residing in a rented house and also educating his children and therefore, he might be taking more than Rs.814/- as given in the counter. 9.Even otherwise, the take home salary alone is not the criterian to find out the means of a person. The take home salary is after meeting all the deductions and therefore the gross salary has got to be taken into account to measure the ability or means of a person to pay the debt. Otherwise, even the persons of Managerial/Executive Cadre, drawinga decent, though not exhorbitant, salary would avail all loans to reduce the take home salary, which would defeat the very purpose of the section. As such take home salary can not be the criteria to arrive at the means of a judgment debtor. 10. Otherwise, even the persons of Managerial/Executive Cadre, drawinga decent, though not exhorbitant, salary would avail all loans to reduce the take home salary, which would defeat the very purpose of the section. As such take home salary can not be the criteria to arrive at the means of a judgment debtor. 10. The Executing Court took note of the fact that the revision petitioner-defendant, having filed the objection in 1994, had chosen to file the salary certificate of the year 1997 only, but has not chosen to file the salary certificate for the years 1994 to 1996; and he did so with a view to suppress the real income in those years. Or the defendant would have availed all the loans possible and they would have reflected in the deduction and filed the salary certificate for the year 1997 to make it appear as if he was getting a meagre amount. After analysing all the aspects, the Executing Court came to the conclusion that the petitioner-judgment debtor is having sufficient means to pay the decree debt and in spite of that he is trying to deny his liability and the same cannot be permitted. As it has been rightly observed by the Executing Court that the third defendant is having sufficient means to discharge the debt and the said finding does not suffer from any infirmity which warrants interference by this court. 11. In the result, Civil Revision Petition is dismissed. No costs. Consequently, no order is necessary in C.M.P.No.9310 of 1998 and the same is closed.