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2007 DIGILAW 1226 (MAD)

Subramanya Gounder v. Perumalammal

2007-04-05

S.NAGAMUTHU

body2007
Judgment :- This Civil Revision Petition has been filed challenging the order-dated 25.08.2006, made in E.P.No.47 of 2006 in O.S.No.366 of 2001, on the file of the learned Subordinate Judge, Palani. 2. Brief facts of the case are as follows:- The respondent herein has filed a suit in O.S.No.366 of 2001, on the file of the learned Subordinate Judge, Palani, against the petitioner herein for recovery of money. The learned Subordinate Judge has passed a decree on 10.10.2002, in favour of the respondent herein. To execute the said decree, the respondent/plaintiff has filed E.P.No.47 of 2006, on the file of the learned Subordinate Judge, Palani. In the said E.P., the learned Subordinate Judge by an order dated 25.08.2006, ordered to arrest the petitioner herein. Challenging the said order of arrest, the petitioner has come forward with this civil revision petition. 3. The main grievance of the petitioner is that the learned Subordinate Judge has not strictly followed the provision contained in Order 21 Rule 40 and Section 51 C.P.C. The learned counsel appearing for the petitioner would submit that there was no enquiry held at all to find out the means of the petitioner herein on the date of the order and the order does not speak about any satisfaction arrived at by the learned Subordinate Judge to issue warrant for arrest of the petitioner. In support of his contention, he relies on the Judgment of the Hon’ble Supreme Court in 1980 (2) Supreme Court Cases 360 (Jolly George Varghese Vs. The Bank of Cochin) and AIR 1982 Mad. 31 (Anama Gounder Vs. A.C.Ponnusami). 4. Further, I am also obliged to refer the decision of the Apex Court in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 , wherein, while dealing with Order 21, Rule 37, the Apex Court has held as follows:- “The simple default to discharge the decree, is not enough, there must be some element of bad faith beyond mere indifference to pay, some deliberate or recustant disposition in the post or alternatively, current means to pay the decree or a substantial part of it. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs straitened circumstances will play prominently.” 5. The provision emphasises the need to establish not mere omission to pay but an attitude of refusal as demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor’s other pressing needs straitened circumstances will play prominently.” 5. Following the said decision in Jolly George Varghese v. Bank of Cochin, AIR 1980 SC 470 this Court in Anama gounder v. A.C.Ponnusami, AIR 1982 Mad.31, has held as follows:- “Where a debtor is sought to be arrested and put in Civil Prison, for non-payment of a decree debt, the execution Court cannot rely for the support of its order entirely on the state of the pleading of the judgment debtor. It is the bound duty of the execution Court to satisfy itself that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of decree or some substantial part thereof, but all the same refuses or neglects or has refused or neglected to pay the same. The Court’s satisfaction must be entered for good reasons, which are to be recorded in writing in the order. The provisions of Section 51 do not depend for their implementation on the attitude, which the judgment debtor might take when notice goes to him of the execution petition. Whether or not the judgment-debtor resists the execution petition and whether or not the judgment debtor denies that he has means, the Court cannot shirk its responsibility under the code of instituting an enquiry to find out whether the judgment-debtor as the requisite means to pay and yet willfully refuses or neglects to pay the amount.” 6. In the case on hand, the impugned order dated 25.08.2006, reads as follows:- “Petitioner Ready for Enquiry. Respondent not ready for Enquiry. Respondent called absent set exparte. Means proved by Affidavit. Arrest J.D. 28.09.2006.” 7. A perusal of above impugned order does not show that, any enquiry was held by the learned Subordinate Judge, as required under the above provision to ascertain the means of the petitioner herein. Further, the learned Judge has not recorded his satisfaction that the petitioner has got means and he has been refusing or neglecting to pay the same. The order passed by the learned Judge is bereft of details. Further, the learned Judge has not recorded his satisfaction that the petitioner has got means and he has been refusing or neglecting to pay the same. The order passed by the learned Judge is bereft of details. It is obvious that there was no satisfaction at all on the part of the learned Subordinate Judge regarding the means of the petitioner and about his neglect or refusal to pay the decree amount. For these reasons and in view of the Judgment of the Hon’ble Supreme Court and the Judgment of this Court, as referred to above, I am of the view that the order of the learned Subordinate Judge under challenge has to be necessarily set aside. 8. In the result, the order passed by the learned Subordinate Judge, Palani dated 25.08.2006, made in E.P.No.47 of 2006 in O.S.No.366 of 2001, is set aside and the learned Subordinate Judge is directed to follow the procedure contemplated in the Code and in the light of the decisions of the Hon’ble Supreme Court and this Court and dispose of the E.P.No.47 of 2006, in accordance with law, after affording sufficient opportunity to both the parties concerned, as expeditiously as possible. 9. With the above direction, the civil revision petition is allowed. No costs. Consequently, connected M.P is closed.