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2012 DIGILAW 3095 (MAD)

S. Rajamanickam v. K. P. Muthusamy

2012-07-18

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the order dated 19.7.2011 passed by the Additional District Judge, Fast Track Court-IV, Bhavani, Erode District, this civil revision petition is filed. 2. A thumbnail sketch of the germane facts, which are absolutely necessary for the disposal of this civil revision petition would run thus: (i) The respondent herein filed the E.P.2 of 2010 for recovery of a sum of Rs.7,17,800.00. (ii) The revision petitioner herein being the judgement debtor filed the counter to the effect that he is a retired VAO getting only a meagre pension of Rs.6000/- per month. From out of that amount, he could not pay the E.P. amount in one lump sum. He also stated that he was not owning any immovable property as alleged by the decree holder. (iii) The Executing Court passed the following order in the E.P., after hearing both sides. “ TAMIL ” 3. Being aggrieved by and dissatisfied with the said order, this revision is focussed by the judgment debtor on various grounds. 4. The learned counsel for the petitioner/judgement debtor, by placing reliance on the grounds of revision would implore and entreat that the revision petitioner, who is getting only a monthly pension of Rs.6000/-, cannot pay every month a sum of Rs.50,000/-towards discharge of the E.P.amount of Rs.7,17,800.00. As such, the said order passed by the Executing Court has to be set aside and at the most, the judgement debtor would be in a position to pay every month a sum of Rs.5000/-. 5. At this juncture I would like to recollect and call up the following provision of law "Order 20 Rule 11 of C.P.C.-Decree may direct payment by instalments – (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, an order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. (2) Order, after decree, for payment by instalments – After the passing of any such decree the Court may, on the application of the judgement-debtor and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks fit. High Court Amendment (Madras):Substitute the following for R.11: "11. Decree may direct payment by instalments (1) Where and in so far as a decree is for the payment of money, the Court may for any sufficient reason at the time of passing the decree order that payment of the amount decreed shall be postponed or shall be made by instalments, with or without interest, notwithstanding anything contained in the contract under which the money is payable. (2) After the passing of any such decree the Court may, on the application of the judgement-debtor and after notice to the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by instalments on such terms as to the payment of interest, the attachment of the property of the judgement-debtor, or the taking o security from him, or otherwise, as it thinks it." 6. In this case, such a step was not taken by the judgement debtor. However, the Executing Court, on hearing both sides, at the E.P. stage, simply passed such a cryptic order, extracted supra without assigning any reason. 7. It is not out of place to mention that in an E.P. for arrest when the judgement debtor pleads no means, it is the bounden duty of the Court to conduct means enquiry, but in this case, no means enquiry was conducted, but on the other hand, the Executing Court simply passed the aforesaid order. Hence, this Court is having no other option except to set aside the order of the Executing Court and direct it to conduct means enquiry and accordingly it is ordered. Based on such means enquiry, suitable orders shall be passed within a period of one month from the date of receipt of a copy of this order. 8. The civil revision is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.