Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 1148 (MAD)

N. C. Duraisamy Naidu v. K. Pappaiya Naidu

2007-03-30

K.VENKATARAMAN

body2007
Judgment :- 1. The present revision has been filed by the Judgment-debtor questioning the order passed in E.P. No.35/2005 in O.S. No.317/1999 by the learned Subordinate Judge, Gudiyattam, Vellore District dated 4. 2006. 2. The respondent/decree holder has filed a Suit against the petitioner/judgment-debtor in O.S. No.317/99 and obtained money decree. To execute the same, the respondent herein has filed E.P. No.35 of 2005 under Order 21, Rule 37, C.P.C. Counter has been filed by the petitioner herein repudiating the contentions raised in the Execution Petition. The learned Trial Judge after considering the matter in issue has held that arrest cannot be ordered against the petitioner/judgment debtor as he has possessed property. However, the learned Trial Judge directed the petitioner/judgment-debtor to pay the decree amount in installment at Rs.5,000/- per month failing which arrest will be ordered. Challenging the said order the present Revision has been filed. 3. Mr. K.A. Ravindran, learned counsel appearing for the petitioner contended that the learned Trial Judge has not given any finding that the petitioner/judgment-debtor has means to pay the decree amount. The learned Trial Judge has not given any finding that the petitioner has wilfully neglected to pay the decree amount. 4. Per contra, Mr. R. Margabandhu, learned counsel for the respondent/decree holder contended that it is for the decree holder to choose the mode in which execution can be made and it is not for the judgment-debtor to dictate the particular mode that has to be exercised by the decree holder. According to the learned counsel, the learned Trial Judge has directed the petitioner/judgment-debtor to pay the decree amount in installments and only on failure to do so arrest has been ordered. The sum and substance of the contentions of the learned counsel for the respondent is that the order passed by the Trial Judge is perfectly in order. 5. I have heard the learned counsel appearing for the petitioner as well as respondent. As rightly pointed out by the learned counsel for the petitioner, the learned Subordinate Judge, Gudiyattam has not given any finding with regard to the means of the petitioner/judgment debtor. Further, there is no further finding that in spite of means, the petitioner/judgment-debtor wilfully has not paid the decreed mount. Hence, the matter is remanded to the Trial Court for deciding the question whether the petitioner/judgment-debtor has got means to pay the decreed in the Suit. Further, there is no further finding that in spite of means, the petitioner/judgment-debtor wilfully has not paid the decreed mount. Hence, the matter is remanded to the Trial Court for deciding the question whether the petitioner/judgment-debtor has got means to pay the decreed in the Suit. Since the Suit is of the year 1999 and the execution has been levied in the year 2005, I hereby direct the learned Subordinate Judge, Gudiyattam to take up E.P. No.35/2005 on his file and after affording opportunity to the petitioner as well as respondent shall pass orders as expeditiously as possible. 6. The Civil Revision Petition is allowed. Consequently, connection pending M.P. No.1/2006 is disposed of. No costs.