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2011 DIGILAW 2737 (MAD)

J. Baskar v. Indian Bank By its Manager

2011-06-13

K.K.SASIDHARAN

body2011
JUDGMENT :- 1. The petitioner challenge the order dated 6.11.2007 in R.E.P.No.113 of 2007 in O.S. No. 61 of 1995 on the file of the learned Additional Subordinate Judge, Salem, whereby and whereunder, an order of arrest was made against him, in spite of his plea of ‘no means’. 2. The respondent appears to have obtained a decree against the petitioner in O.S. No. 61 of 1995 on the file of the learned Subordinate Judge, Salem, for a sum of Rs. 3,65,014/- with costs. Since the petitioner failed to honour the decree, the respondent filed R.E.P. No.113 of 2007 before the Executing Court, for the purpose of execution of the decree. The Execution Petition was contested by the revision petitioner by filing counter, wherein it was stated that he was not in a position to pay the amount as he was not having the means. 3. The learned Additional Subordinate Judge, Salem, by way of a non-speaking order, directed the arrest of the petitioner by 30.11.2007. Feeling aggrieved by the said order, the petitioner is before this Court. 4. I have heard the learned counsel appearing for the parties. 5.The execution application filed by the respondent was resisted by the petitioner on the ground that he has no means. However, in spite of taking such a defence, the learned Executing Judge has not taken any steps to verify the means, for the purpose of deciding as to whether an order of arrest could be issued against the petitioner. The order of the learned Executing Judge does not contain any finding to the effects that the petitioner has got means to pay the decree amount and in spite of possessing the necessary means, he has not paid the amount. 6.The issue, regarding the necessity to pass a reasoned order in case the judgment-debtor has taken a plea of no means, came up for consideration before this Court in N.C.Duraisamy Naidu v. K.Pappaiya Naidu reported in 2007 [3] CTC 67 and the learned Judge observed that in case a plea of ‘no means’ is taken by the judgment-debtor, naturally, a finding should be given by the Executing Court. 7.Since the learned Executing Judge has not considered the plea taken by the petitioner with regard to the means, the matter requires fresh consideration. 8.Accordingly, the impugned order is set aside and the matter is remitted to the learned Executing Judge for fresh consideration. 7.Since the learned Executing Judge has not considered the plea taken by the petitioner with regard to the means, the matter requires fresh consideration. 8.Accordingly, the impugned order is set aside and the matter is remitted to the learned Executing Judge for fresh consideration. The learned Executing Judge is directed to hear the parties and pass appropriate orders on merits and in accordance with law. 9.The civil revision petition is allowed as indicated above. No costs. Consequently, M.P. No. 1 of 2008 is closed.