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2012 DIGILAW 3394 (MAD)

C. Natarajan v. M. Chandra

2012-08-01

G.RAJASURIA

body2012
Judgment :- 1. Animadverting upon the fair and final order dated 16.02.2010 passed in E.P.No.61 of 1992 in O.S.No.17 of 1987 by the learned Sub Judge, Udumalpet, Coimbatore District, this civil revision petition is focussed. 2. A summation and summarisation of the germane facts absolutely necessary for the disposal of these two revisions would run thus: The respondents/decree holders filed the E.P. to execute the money decree. The E.P. was filed on 27.04.1992 for attachment of the joint property of the judgment debtors three in number and for sale. The attachment was effected. However, that attachment was not got registered and because of that, the attempt on the part of the judgment debtors to get the properties to recover the money by selling the property ended in fiasco; whereupon the same E.P. was got amended vide the order dated 04.08.2009 as per the order passed in E.A.No.149 of 2009. Thereafter, the judgment debtors 2 and 3 also filed counters raising their objections. After hearing both sides, the Executing Court passed the order for arresting the judgment debtors 1 to 3. 3. Being aggrieved by and dissatisfied with the same, these two revisions have been focussed on various grounds. 4. The learned Advocates appearing for the judgment debtors 2 and 3 in unison, would argue that the proper notice relating to arrest was not served on them and over and above that, the Execution Petition even though filed on 27.04.1992, was got amended only by virtue of the order dated 04.08.2009, which was beyond the limitation period of 12 years. Hence, the entire E.P. should be dismissed. 5. The points for consideration are as to: 1. Whether the E.P. for arrest was barred by limitation? 2. Whether the revision petitioners could be heard to contend that proper E.P. notice for arrest was not served on them even though they filed counter in the arrest E.P.? 6. Both these points are taken together for discussion as they are inter linked and inter woven with each other. 7. The above facts ex facie and prima facie would make the point clear that the E.P. was filed for attachment and sale of the property even as early as on 27.04.1992, which was within 12 years period counting from the date of decree i.e. 01.12.1989. 7. The above facts ex facie and prima facie would make the point clear that the E.P. was filed for attachment and sale of the property even as early as on 27.04.1992, which was within 12 years period counting from the date of decree i.e. 01.12.1989. However, there was some defect in the attachment of the property and the auction sale could not get fructified and the decree holders got the E.P. amended by virtue of the order dated 04.08.2009 passed in E.A.No.149 of 2009 by the Court concerned. Thereafter, counters also were filed by D2 and D3. Even though the amendment of the E.P. took place beyond 12 years' period, yet by no stretch of imagination it could be stated that the E.P. itself for arrest was barred, because the original E.P. was filed on 27.04.1992 and no fresh E.P. was filed after the period of limitation; on valid reasons, the E.P. for the sale of the property could not be proceeded with and hence the E.P. was got amended as one for arrest. In this connection, I would like to extract hereunder Article 136 of the Limitation Act: Accordingly, I hold that the Execution Petition is not barred by limitation as per Article 136 of the Limitation Act. 8. The arguments advanced on both sides and the admitted factual matrix, would be to the effect that after the passing of the decree on 01.12.1989, as revealed by Ex.P.1-the sale deed dated 12.02.1999 all the three judgment debtors executed the sale deed for a sum of Rs.8,60,000/- to a third party transferring their property. 9. I would like to extract hereunder Section 51 of CPC: "51. Powers of Court to enforce execution. 9. I would like to extract hereunder Section 51 of CPC: "51. Powers of Court to enforce execution. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree— (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied— (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,— (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or has since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or (c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account. Explanation.—In the calculation of the means of the judgment-debtor for the purposes of clause (b), there shall be left out of account any property which, by or under any law or custom having the force of law for the time being in force, is exempt from attachment in execution of the decree." 10. A mere poring over and perusal of it, would reveal that once it could be shown that after the passing of the decree the judgment debtors had financial wherewithal to discharge their debts and despite that they did not discharge it, then they cannot plead no means and arrest could be ordered. A mere poring over and perusal of it, would reveal that once it could be shown that after the passing of the decree the judgment debtors had financial wherewithal to discharge their debts and despite that they did not discharge it, then they cannot plead no means and arrest could be ordered. Here in this case, it is clear that even though the E.P. amount itself was only Rs.3,25,000/-, the sale pending E.P. was effected by the judgment debtors for Rs.8,60,000/-. As such, they are liable for arrest and the lower Court correctly ordered arrest, warranting no interference in both the revisions. Accordingly, both the civil revision petitions are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.