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2008 DIGILAW 4226 (MAD)

M. Karuppannan v. M. Ponnusamy

2008-11-17

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/defendant/respondent has preferred this civil revision petition aggrieved against the order dated 12.04.2006 in I.A.No.201 of 2005 in O.S.No.721 of 2003 passed by the Principal Subordinate Judge, Salem in allowing the application filed by the respondent/plaintiff/petitioner under Section 151 of Civil Procedure Code and ordered the sum of Rs.1,13,130/-to be paid to the respondent/plaintiff/petitioners Advocate Thiru.M.Marimuthu by means of cheque. 2. The trial Court, while passing orders in I.A.No.201 of 2005, has inter alia stated that I.A.No.33 of 2005 has been ordered on 31.03.2005 permitting the respondent/plaintiff/petitioner to receive the amount lying in Court deposit etc. and resultantly, has allowed the application and directing the issuance of cheque for a sum of Rs.1,13,130/- to be issued in favour of respondent/plaintiff/ petitioners Advocate Thiru M.Marimuthu. .3. According to the learned counsel for the revision petitioner, the trial Court has acted without jurisdiction in ordering the application to issue cheque as the subject matter is pending adjudication in I.P.No.44 of 2005 filed by the revision petitioner/ defendant and further that the application filed by the respondent/ plaintiff praying for issuance of cheque for the amount deposited by the revision petitioner/defendant in O.S.No.721 of 2003 ought to have been taken up by the trial Court along with I.A.No.34 of 2006 in I.P.No.44 of 2005 filed by the revision petitioner/defendant seeking a direction to the Official Receiver to withdraw the amount for distribution among the schedule creditors and moreover, the term Debt includes Decree Holder and the term Debt includes a Judgment debt and as such the right of priority of the respondent/plaintiff to claim the sum has to be decided under the provisions of the Insolvency Act and in any event, the order of the trial Court is ex facie, illegal and contrary to law and therefore, prays for allowing the revision to promote substantial cause of justice. 4. In suit O.S.No.721 of 2003 filed by the respondent/plaintiff a decree was passed on 110. 2004. Admittedly, I.A.No.33 of 2005 filed by the respondent/plaintiff for withdrawing the amount deposited by the revision petitioner/defendant has been allowed on 31.03.2005. As against the judgment and decree passed in O.S.No.721 of 2003, the revision petitioner/defendant has filed A.S.No.36 of 2004 and the same has been dismissed on 08.08.2005. The revision petitioner/defendant filed I.P.No.44 of 2005 on the file of Principal Subordinate Judge, Salem on 22.08.2005. As against the judgment and decree passed in O.S.No.721 of 2003, the revision petitioner/defendant has filed A.S.No.36 of 2004 and the same has been dismissed on 08.08.2005. The revision petitioner/defendant filed I.P.No.44 of 2005 on the file of Principal Subordinate Judge, Salem on 22.08.2005. However, the revision petitioner/defendant filed I.A.No.34 of 2005 praying for a direction to be issued to the Official Receiver to withdraw the amount of Rs.1,13,130/-deposited by the revision petitioner in I.A.No.1076 of 2003. The said application I.A.No.34 of 2005 is pending on the file of Principal Subordinate Judge, Salem. It is not in dispute that the order passed by the trial Court on 31.03.2005 directing the payment has not been challenged. 5. The learned counsel for the respondent/plaintiff submits that the revision petitioner/defendant has no locus to file the revision petition in the eye of law because a debtor is a dead person and in any event, he is not going to get his money already deposited in the trial Court and further that he has created bogus debtors and if the revision petitioner is really interested in welfare of the creditors then he should have filed a petition praying the Insolvency Court to vest his entire movable and immovable properties with the Official Receiver at the earliest and the aim of the revision petitioner/ defendant is to drag on the matter endlessly as far as possible and therefore, prays for dismissal of the revision petition. .6. It cannot be gainsaid that the declaration of a debtor as an insolvent will naturally have an adverse impact on the creditors. A step which must be taken as a last resort, resulting in stigmatisation of the person declared as insolvent, is now a days turning to be a ruse to evade payment of money borrowed through one means or the other, in the considered opinion of this Court. No wonder, it is not that an individual is entitled to be declared as insolvent, just for asking of it. In this connection, this Court aptly points out the decision Sudhandhiran Vs. Krishnan AIR 2006 Madras page 10 wherein this Court has held that just because an application has been filed by the petitioner himself before the Insolvency Court in the absence of any order or adjudication by the said Court, the Executing Court need not stay its proceedings. 7. In this connection, this Court aptly points out the decision Sudhandhiran Vs. Krishnan AIR 2006 Madras page 10 wherein this Court has held that just because an application has been filed by the petitioner himself before the Insolvency Court in the absence of any order or adjudication by the said Court, the Executing Court need not stay its proceedings. 7. As far as the present case is concerned, since the cheque application I.A.No.201 of 2005 has been allowed on 12.04.2006 and inasmuch as the cheque for Rs.1,13,130/-has been issued on 18.07.2006 and the same has been encashed by the respondent/ plaintiff and taking note of the fact, the order directing the payment on 31.03.2005 has not been challenged by the revision petitioner/ defendant and taking note of the overall assessment of the facts and circumstances of the case, this Court is not inclined to interfere with the order passed by the trial Court in I.A.No.210 of 2005 and resultantly, the civil revision petition fails and the same is hereby dismissed. In fine, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs. Consequently, connected miscellaneous petitions are also dismissed.