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2009 DIGILAW 614 (MAD)

K. Muthusamy v. Rajammal & Others

2009-02-19

A.C.ARUMUGAPERUMAL ADITYAN

body2009
Judgment :- Heard the learned counsel appearing for the revision petitioner. 2. Inspite of service of notice, there is no representation for the respondents. 3. Under this revision , an order of arrest in REP No.1 of 2006 in O.S.No.454 of 2002 is challenged. Relying on a ratio in Bharath N.Mehtha -v- Mansi Finance (Chennai) Ltd by its Authorised Siganator Mr.Kantilal B.Dave(1999 (1(CTC) 687), the learned counsel would contend that once Judgment Debtor has been adjudicated as an insolvent, the remedy open to the creditors is to approach the Insolvency Court. But the fact remains that the Judgment Debtor in this case has not been adjudicated as an insolvent, only he has filed insolvency petition before the insolvency Court. The learned trial Judge has rightly observed that mere pendency of an Insolvency petition is not a ground to dismiss the execution petition. 4. The other ground raised by the learned counsel for the revision petitioner is that the legal representatives of the decree holder is not entitled to proceed with the execution petition. This point was also answered by the Execution Court as that the execution petition was filed by the decree holder and while he was alive, the order of arrest was passed and subsequently only the decree holder died and his legal representatives were impleaded and re-arrest was ordered. 5. The learned counsel appearing for the revision petitioner would focus the attention of this Court to the additional counter filed by him before the Execution Court as to the effect that without succession certificate, the respondents herein are not entitled to proceed with the insolvency petition. As I have already observed, the execution petition was filed by the decree holder himself and an order of arrest was also passed while he was alive, subsequently he died, the respondents were impleaded as legal representatives of the decree holder and as rightly observed by the execution Court, the respondent herein as Legal representatives of the decree holder are entitled to proceed with the execution petition in the absence of any order for adjudication of the Judgment Debtor as insolvent by the insolvency Court. Under such circumstances, I do not find any merit in the civil revision petition. 6. In fine, this civil revision petition is dismissed. It is open to the revision petitioner to approach the execution Court for appropriate remedy after making part satisfaction of the decree amount. Under such circumstances, I do not find any merit in the civil revision petition. 6. In fine, this civil revision petition is dismissed. It is open to the revision petitioner to approach the execution Court for appropriate remedy after making part satisfaction of the decree amount. No costs. Connected M.P.No.1 of 2009 is also dismissed.