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2007 DIGILAW 2298 (MAD)

Ramakrishnan v. Muthuswamy

2007-07-23

M.CHOCKALINGAM

body2007
Judgment :- Challenge is made to an order made by the learned Subordinate Judge, Mettur, issuing a warrant of arrest against the revision petitioner-judgment debtor in REP No.59 of 2006. 2. The Court heard the learned Counsel for the petitioner. 3. No notice is necessary, in the opinion of this Court, in order to avoid the avoidable delay and expenditure also to the respondent-decree holder. 4. Pursuant to an ex-parte decree passed in O.S.No.7 of 2006, for the realisation of the decree amount, REP No.59 of 2006 was laid, wherein the decree holder sought the realisation by way of arrest of and committing the judgment debtor to prison. After the service of the E.P. notice, the petitioner herein filed an application to set aside the ex-parte decree. While doing so, there was a delay of 139 days. In order to condone the delay, he has filed I.A.No.94 of 2007, in which the counter has been filed by the decree holder/plaintiff. The same is also now pending enquiry. Under the circumstances, the E.P. was proceeded with, and now, the order of arrest has been passed on 7. 2007. Hence, this revision has been brought forth. 5. The only contention put forth by the learned Counsel for the petitioner is that since an application to condone the delay of 139 days along with an application to set aside the ex-parte decree has been filed, and it is pending, the lower Court should have stopped further proceedings in the E.P., but has issued the warrant of arrest against the revision petitioner/judgment debtor, and hence, the order of the lower Court has got to be set aside. 6. The mere filing of an application to condone the delay in making an application to set aside the ex-parte decree or even the pendency of an application to set aside the ex-parte decree by itself would not be a cause for stopping the execution proceedings. It is pertinent to point out that the petitioner has not sought for any stay of the execution proceedings before that Court. Instead, he has brought forth the revision before this Court. It is pertinent to point out that the petitioner has not sought for any stay of the execution proceedings before that Court. Instead, he has brought forth the revision before this Court. However, taking into consideration the facts and circumstances and the pendency of the application filed by the revision petitioner before the lower Court, this Court is of the considered opinion that it would suffice to recall the warrant of arrest and to stay the execution proceedings till the disposal of the interlocutory application filed by the petitioner, which is now pending before that Court, but subject to condition. Accordingly, it is ordered on condition of the petitioner making a deposit of 50% of the E.P. amount before the lower Court within a period of four weeks herefrom, which shall be kept in Court deposit till the disposal of that application. If complied with, the Executing Court has to recall the warrant and to stay all the proceedings till the disposal of that application, and if not complied with, there is no impediment for the Executing Court to proceed with the E.P. as it stands today. This civil revision petition is, accordingly, disposed of. No costs. Consequently, connected MP is closed.