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2012 DIGILAW 3180 (MAD)

Karuppasamy v. Shanmugasundaram

2012-07-20

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the 11.12.2009 passed by the District Munsif, Kangayam, Erode District, E.P.No.1 of 2007 in O.S.No.43 of 2005, this civil revision petition is filed. 2. A thumbnail sketch of the germane facts absolutely necessary and germane for the disposal of this civil revision petition, in a few broad strokes can be encapsulated thus: (i) The respondent herein happened to be the decree holder, who filed the E.P.No.1 of 2007 for recovery of a sum of Rs.1,12,037.00 based on money decree. (ii) The revision petitioner herein/judgment debtor resisted the E.P. by pleading that he was a man of no means and that he could not be arrested. (iii) The Executing Court conducted the enquiry. The decree holder examined himself as P.W.1 and no document was marked on his side. The judgment debtor examined himself as R.W.1 along with R.W.2 and marked Exs.R1 to R3. (iv) Ultimately, the Executing Court found that the judgment debtor was a man of means and he had sufficient financial wherewithal to pay the debt, but he failed to do so. Accordingly, arrest was ordered. 3. Being aggrieved by and dissatisfied with the same, this revision has been focussed on various grounds. 4. The learned counsel for the revision petitioner/judgment debtor, by placing reliance on the grounds of revision would put froth and set forth his arguements to the effect that the decree holder projected and portrayed to the effect that the judgment debtor is a man having monthly income of Rs.6,000/-, as a Supervisor in a packaging Company, and that he is also owning immovable property. The Court simply believed it without any cogent evidence, warranting interference in revision. 5. According to the learned counsel for the revision petitioner/judgment debtor, his client was earning a sum of Rs.50/- per day and that now he is jobless 6. Per contra, in a bid to torpedo and pulverise the arguements as put froth and set forth on the side of the revision petitioner/judgment debtor, the learned counsel for the respondent/decree holder, by inviting the attention of this Court to the judgment of the Executing Court would submit that the lower Court, after analysing the evidence, arrived at the conclusion that the judgment debtor is owning immovable property and cultivating the same and he was also working as a Supervisor in a packaging company. So far not even a single rupee was paid by the judgment debtor to show hisbona fides or sincere attempts in discharging the debt. 7. The point for consideration is as to whether there is any perversity or illegality in the findings given by the Executing Court relating to the means of the judgment debtor to discharge the debt. 8. At the out set itself, I would fumigate my mind with the following decisions of this Court relating to means: The learned counsel for the petitioner cited the following decisions: (i) 2012(3) CTC 294 – SENTHIL KUMAR 2. E.SUBBIAN V. KMN SURENDRAN; (ii) (2004)3 M.L.J.572 – DHARMALINGAM V. PAVALKODI (iii) (2003)2 M.L.J.329 – K.M.KANNU GOUNDER V. MAHBOOB ALI SAHIB AND ANOTHER; (iv) 1995(II) CTC 20 – MR.THARMAPITCHAI AND ANOTHER V. A.C.A.FUNDS, TIRUNELVELI The learned counsel for the respondent cited the following decisions: (i) 2007(3) CTC 67 – N.C.DURAISAMY NAIDU V. K.PAPPAIYA NAIDU; (ii) 2006(3) CTC 546 – GANESH VS. SANKARAN AND ANOTHER; (iii) 2011(2) CTC 312 – SHRI PARVTHAM TEXTILES V. CHONA FINANCIAL SERVICES P.LTD.; (iv) 2010-1-L.W.720 – CHINNARASU V.PEYAPPA GOUNDER; (v) 2006-4-L.W.655 – K.VIJAYAN V. 1.K.G.KUPPUSMY, 2.R.V.MOHANASUNDARAM, 3. G.THANIGACHALAM AND 4.SAMBASIVAM. (vi) 2000-1-L.W.838 – M.MUTHUSWAMI V. SUPASRI CHIT FUNDS, COIMBATORE AND AKKAMMAL. (vii) 93 L.W.423 – SHIEK SUJAUDEEN V. T.ARUMUGHAM CHETTIAR. 9. A plain running of eye over those precedents would exemplify and demonstrate that the Court has to take into account three important factors, namely, the date of the decree, the quantum of the decreetal amount and the period elapsed after the passing of the decree. 10. It has to be seen as to whether despite such sufficient time having elapsed and having sufficient income, the judgment debtor failed to discharge the dues. 11. In this case, the decree was passed as early as on 27.10.2006. As on this date, almost six years elapsed, even then, the judgment debtor has not chosen to pay any amount. During his examination before the Executing Court, the judgment debtor admitted that there was one partition relating to immovable property and in that he got share in the 'E' schedule property relating to S.No.858 along with his mother and sister-in-law. But he has not chosen to file the said deed. As such, adverse inference can rightly be drawn as against the petitioner/judgment debtor that had he produced the partition deed, the cat would have been out of the bag. 12. But he has not chosen to file the said deed. As such, adverse inference can rightly be drawn as against the petitioner/judgment debtor that had he produced the partition deed, the cat would have been out of the bag. 12. No doubt, the initial burden was on the decree holder to prove that the judgment debtor was a man of means. Here, the perusal of the order of the Executing Court would show that the judgment debtor cogently and candidly, pulling no punches, admitted that he had interest in the immovable property; while so relating to the details and his income derived out of it, the judgment debtor should have placed evidence before the Court. But he did not do so. However, he would rely on Exs.R1 to R3, which are relating to temple property. 13. There was one attachment, it seems, and in connection with that attachment alone such evidence was adduced to the effect that the property attached did not belong to the judgment debtor, but to the temple. 14. But here, the point is entirely different. The judgment debtor admits his interest along with his mother and sister-in-law in S.No.858, as per the partition deed, which he has not produced. As such, the Executing Court was justified in discerning that he had interest in the immovable property and also deriving income out of it. 15. Over and above that the decree holder would say that the judgment debtor is earning Rs.6000/- per month as Supervisor in a Packaging Company. Whereas, the judgment debtor has pleaded that he worked for only one year and that too, for a salary of Rs.50/- per day. 16. If that be so, the judgment debtor could have very well produced the salary certificate and also the termination certificate. But he has not chosen to do so. These are all facts which he pleaded positively and in such a case, he could have produced those documents. It is not as though the Court expected the judgment debtor to produce something which he could not produce. But the facts which he admitted were capable of being objectively placed before the Court, which he failed to do so. 17. Indubitably and indisputably, despite lapse of six years, the judgment debtor has not chosen to pay even a single rupee by way of discharging the debt. But the facts which he admitted were capable of being objectively placed before the Court, which he failed to do so. 17. Indubitably and indisputably, despite lapse of six years, the judgment debtor has not chosen to pay even a single rupee by way of discharging the debt. As such, cumulatively if the evidence on record is viewed it is clear that he had means to discharge the decretal debt, though not in one lump sum, the entire decree amount, at least in part and that itself shows that there was wilful negligence on his part in not having the intention to discharge the debt. 18. However, considering the fact that the judgment debtor as on today could not discharge the entire sum of Rs.1,12,037.00 in one lump sum, opportunity could be given to discharge the dues in monthly instalments of Rs.5000/-(rupees five thousand) per month payable on or before 5th of every month and accordingly, it is ordered. The judgment debtor shall pay the first instalment on or before 5.9.2012 and similarly every month he should pay at the rate of Rs.5000/-and get proper receipt from the decree holder and if the decree holder is not co-operative, he could deposit the instalments in Court at the rate of Rs.5000/-(rupees five thousand) per month. 19. The civil revision petition is disposed of accordingly. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.