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2018 DIGILAW 4210 (MAD)

K. Chella Nadar v. M. Suresh

2018-11-13

T.RAVINDRAN

body2018
JUDGMENT : 1. The civil revision petition is directed against the order, dated 16.12.2008, passed in E.P.No.80 of 2008 in O.S.No.103 of 2007, on the file of the Principal District Munsif Court, Padmanabhapuram. 2. It is noted that the respondent had levied the suit for recovery of money against the petitioner, in O.S.No.103 of 2007, and the said suit ended in a decree in favour of the respondent. Seeking to execute the decree, the respondent has levied E.P.No.80 of 2008 against the petitioner, under Order XXI Rules 37 and 38 of the Code of Civil Procedure, contending that the petitioner has not paid any amount towards the decreetal amount, despite the issuance of notice and accordingly, prayed for the arrest of the petitioner for the recovery of the same. 3. The petitioner resisted the execution petition levied by the respondent contending that he is unable to pay the decreetal amount to the respondent as per the decree, as he is not in possession of sufficient means and also would contend that he has preferred an appeal challenging the Judgment and Decree of the Trial Court and furthermore, also pleaded that inasmuch as the petitioner is unable to pay the decreetal amount and has reached the state of insolvency, the respondent cannot seek his arrest and accordingly, prayed for the dismissal of the execution petition levied by the respondent. 4. The Court below, after hearing both parties, had passed the order of arrest against the petitioner by the impugned order. Challenging the same, the present civil revision petition has been laid by the petitioner. 5. The cardinal principle for ordering the execution petition levied under Order XXI Rules 37 and 38 of the Code of Civil Procedure is that the Judgment Debtor should have deliberately avoided the payment of the decreetal amount despite being in possession of sufficient means and on being demanded to pay the same. Insofar as this case is concerned, the petitioner had resisted the execution proceeding levied by the respondent contending that he is not in possession of sufficient means and thereby, he is unable to pay the decreetal amount to the respondent. Insofar as this case is concerned, the petitioner had resisted the execution proceeding levied by the respondent contending that he is not in possession of sufficient means and thereby, he is unable to pay the decreetal amount to the respondent. Despite the above stand of the petitioner, the respondent has not placed any material whatsoever, either oral or documentary, to safely conclude that the petitioner is in possession of sufficient means and despite the above position, he is wantonly avoiding the payment of the decreetal amount to the respondent. In such view of the matter, as rightly putforth by the petitioner's counsel, when the basic requirements of law for establishing the means of the petitioner before ordering his arrest have not been satisfied by the respondent by placing acceptable and reliable materials, it does not stand to reason as to how the Court below had proceeded to order the arrest of the petitioner as prayed for by the respondent. On that score alone, it is found that the impugned order does not stand scrutiny in the eyes of law. 6. Furthermore, on a perusal of the impugned order, it is seen that the Trial Court has not at all discussed anything on the merits and demerits of the case of the either party and after extracting the petitioner's case and the respondent's case, it has concluded the matter by ordering the arrest of the petitioner, without any application of mind and giving any reason whatsoever as to why it had ordered the arrest of the petitioner. It is thus found that the impugned order is not a speaking order, the Court below failed to consider the position of law as to the duty cast upon the respondent to establish the means of the petitioner and also the arrest order could be made only after the respondent satisfies that the petitioner is in possession of sufficient means and despite the same, he is deliberately avoiding to pay the decreetal amount. Insofar as this case is concerned, when there is no proof whatsoever placed by the respondent evidencing that the petitioner is in possession of sufficient funds or means and despite the same, deliberately avoiding the payment of the decreetal amount, in such view of the matter, the only course that would be available for the Court below is to dismiss the execution petition preferred by the respondent. On the other hand, the Court below had ordered the arrest of the petitioner, without assigning any reason whatsoever and in such view of the matter, on the above score also, the impugned order is liable to be set aside. 7. For the reasons aforestated, the impugned order, dated 16.12.2008, passed in E.P.No.80 of 2008 in O.S.No.103 of 2007, on the file of the Principal District Munsif Court, Padmanabhapuram, is set aside and resultantly, the execution petition laid by the respondent in E.P.No.80 of 2008 is dismissed. Accordingly, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.