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2018 DIGILAW 4570 (MAD)

N. Sadasivan v. K. Janarthan Nair

2018-12-20

T.RAVINDRAN

body2018
JUDGMENT : 1. In this civil revision petition, challenge is made to the fair and decreetal orders, dated 08.04.2009, passed in E.P.No.56 of 2007 in A.R.C.No.56 of 1989, on the file of the Subordinate Court, Kuzhithurai. 2. The revision petitioner, on the basis of the decree obtained by him against the respondents in A.R.C.No.56 of 1989, preferred the execution petition, in E.P.No.56 of 2007, under Order XXI Rules 22, 37 and 38 and Section 151 of the Code of Civil Procedure, seeking to arrest the respondents for realization of the decree amount passed in his favour. 3. The case of the revision petitioner, in brief, is that despite the decree passed in his favour, the respondents/defendants, though having money to pay the decreetal amount and the first respondent is doing business and earning a monthly income of Rs.30,000/- and also owns immovable properties worth about Rs.50,00,000/-; the second respondent engaged in business, thereby getting a monthly income of Rs.15,000/- and also owns immovable properties worth about Rs.30,00,000/- and the third respondent being a Government employee and drawing a monthly salary of Rs.15,000/- and also owes immovable properties worth about Rs.40,00,000/-, out of which, he derives annual income of Rs.4,00,000/- and accordingly, put forth the case that the Court should pass an order of arrest against the respondents and keep them in judicial custody and commit them to the civil prison and thereupon, the respondents would pay the decreetal amount and otherwise, the revision petitioner would be put to irreparable loss and hardship and the earlier execution petition, preferred by the revision petitioner, in E.P.No.14 of 1989 has been dismissed for non-prosecution and hence, prayed for appropriate orders. 4. The respondents 1 and 2 resisted the above said execution proceedings initiated by the revision petitioner contending that they are aged about more than 75 years and suffering from acute diabetics and heart diseases and the second respondent is still taking treatment in the Hospital and furthermore, the respondents are not having any immovable properties or doing any job and also not earning any income to enable them to pay the decreetal amount and they are not having any means to pay the decreetal amount, and inasmuch as the earlier execution petitioner preferred by the revision petitioner had been dismissed, accordingly, prayed for the dismissal of the execution proceedings. 5. 5. It appears that the third respondent had remained ex parte in the execution proceedings. 6. The Court below, on a consideration of the rival contentions put-forth by the respective parties, holding that the revision petitioner has failed to establish the means of the respondents to pay the decreetal amount, particularly, the case of the revision petitioner that the respondents are possessed of sufficient means and also earning income had been repudiated by the respondents stiffly and despite the same, he having not placed any material or proof to show that the respondents have sufficient means and capacity to pay the decreetal amount and despite the same, they are deliberately evading to pay the decreetal amount and in such view of the matter, dismissed the execution petition preferred by the revision petitioner. Impugning the same, the present civil revision petition has been preferred. 7. The revision petitioner's counsel though admitted that the revision petitioner has not placed any material, as such, to establish the means of the respondents to pay the decreetal amount deliberately, however, it is his contention that even otherwise, the Executing Court should have ordered arrest of the respondents and insofar as, according to him, the establishment of the means of the respondents would arise only when the Court determines to commit them to civil prison and accordingly, contended that the Court below had erred in dismissing the execution petition preferred by the revision petitioner, even without choosing to order the arrest of the respondents and accordingly, prayed for the reversal of the impugned order. In this connection, he placed a strong reliance upon the decision in Chinaraj and another vs. Kanthasamy, reported in 2000 (IV) CTC 481 . 8. In this connection, he placed a strong reliance upon the decision in Chinaraj and another vs. Kanthasamy, reported in 2000 (IV) CTC 481 . 8. On a perusal of the above cited decision, though it has been held that there is nothing in the Code of Civil Procedure to indicate or compel the Executing Court either to give opportunity to the Judgment Debtor and the Decree Holder to adduce evidence to have a full-fledged enquiry and record its reasons before passing the order of arrest and thereby, upheld that such an order of arrest is not one without jurisdiction and accordingly, determining that the order of arrest passed by the concerned Court is only an order passed under Order XXI Rule 38 of the Code of Civil Procedure, accordingly, determining that the question as to the establishment of the means of the Judgment Debtor to pay the decreetal amount and affording him an opportunity would arise only when the final order is passed, under Order XXI Rule 40 of the Code of Civil Procedure, after the Judgment Debtor is arrested and in this connection, it is seen that the Court in the abovesaid authority, for passing the above said decision, had also taken into consideration the decision of this Court rendered in P.G.Ranganatha Padayachi vs. The Mayavaram Financial Corporation Ltd., reported in AIR 1974 Madras 1. 9. On a perusal of the facts involved in the above said decision relied upon by the revision petitioner's counsel as well as the facts involved in the decision relied upon by the Court in AIR 1974 Madras 1, it is seen that inasmuch as the order of arrest had been made by the Executing Court only under Order XXI Rule 38 of the Code of Civil Procedure and Order XXI Rule 37(2) of the Code of Civil Procedure respectively, accordingly, on that premise, holding that reasons need not be stated for ordering arrest, accordingly, it is noted that in the above said decisions, the order of arrest passed by the Executing Court had been upheld. Furthermore, it is also noted that in the above said case, relied upon by the revision petitioner's counsel, the only defence that had been taken by the Judgment Debtors is that they had preferred insolvency petitions and accordingly, they should not be arrested, however, on determining that the defence put forth by them that they had preferred the insolvency petitions as claimed, is not supported by any material, accordingly, determining that the Judgment Debtors involved in the above said case, had been deliberately evading the payment of the decreetal amount, it is noted that the Executing Court had ordered the arrest of the Judgment Debtors, under Order XXI Rule 38 of the Code of Civil Procedure and for the reasons afore stated, the High Court also upheld the said order of arrest. 10. Insofar as the decision reported in AIR 1974 Madras 1, it is found that the Judgment Debtor had appeared before the Court and offered to pay the decreetal amount and accordingly, even though the Executing Court had granted him time to pay the decreetal amount, inasmuch as he had failed to pay any amount as promised, accordingly, upheld the order of arrest passed by the Executing Court by invoking Order XXI Rule 37(2) of the Code of Civil Procedure. In the abovesaid decision, it has been held that if the order of the Executing Court had been passed under Order XXI Rule 40 of the Code of Civil Procedure, then before ordering arrest of the Judgment Debtor, there should be a full-fledged enquiry as to whether the Judgment Debtor is liable to be detained in the civil prison in execution of the decree and only after recording its reasons in writing, as contemplated under the proviso to Section 51 of the Code of Civil Procedure, the Executing Court shall order detention of the Judgment Debtor. It is thus, found that the decision had been rendered in the abovesaid cases only by holding inasmuch as the order passed by the Executing Court in the cases covered under the abovesaid decisions have been passed under Order XXI Rule 38 and Order XXI Rule 37(2) of the Code of Civil Procedure, on that basis, despite the failure of the Decree-Holder to establish the means, which according to the decisions would not arise for consideration at the stage of arrest and accordingly, found to have upheld the orders passed by the Executing Court. 11. However, insofar as the facts and circumstances of the present case is concerned, it is seen that following the execution petition preferred by the revision petitioner under Order XXI Rules 37 and 38 of the Code of Civil Procedure, notice has been ordered to the Judgment Debtors and following the same, as above noted, the respondents 1 and 2 had entered appearance and filed their counter disputing the case of the revision petitioner, in toto, as regards the alleged means possessed by them and their earning capacity as put-forth by the revision petitioner and accordingly, contended that they have neither means nor deriving income and contended that they are aged more than 75 years and suffering from heart ailment etc., and taking treatment and accordingly unable to pay the decreetal amount as prayed for. Accordingly, in the light of the above said defence put-forth by the Judgment Debtors, namely, the respondents 1 and 2, it is found that the Court below had proceeded to determine the merits of the case of either parties, as provided under Order XXI Rule 40 of the Code of Civil Procedure and accordingly, finding that the revision petitioner had not endeavoured to establish the means of the Judgment Debtors, namely, the respondents 1 and 2 by placing acceptable and reliable materials whatsoever, particularly, when the case projected by the revision petitioners had been wholly repudiated by the Judgment Debtors, namely, the respondents 1 and 2 and accordingly, noting that the revision petitioner having failed to establish the means and capacity of the respondents 1 and 2 and their deliberate intention in not paying the decreetal amount despite having sufficient means and income, the sine qua non for determining the issues under Order XXI Rule 40 of the Code of Civil Procedure, resultantly, dismissed the execution petition preferred by the revision petitioner. 12. In the light of the abovesaid factors, when it is seen that the Executing Court is fully empowered to embark upon the enquiry under Order XXI Rule 40 of the Code of Civil Procedure on the appearance of the Judgment Debtors in obedience to the notice issued to them and also filed the counter resisting the revision petitioners' case, in toto, and pleaded that they have no means or income to pay the decreetal amount as contended by the revision petitioner, in such view of the matter, it is found that the revision petitioner should have, for proceeding further in the matter, placed acceptable and reliable materials to hold that the Judgment Debtors are possessed of sufficient means and capacity to pay the decreetal amount and despite the same, they are deliberately and intentionally evading the payment for one reason or the other with a view to cause hardship to the revision petitioner and when the abovesaid essential facts having not been established by the revision petitioners by placing convincing proof, as above pointed out, I do not find any error or infirmity in the impugned order of the Court below dismissing the execution petition preferred by the revision petitioner. In this connection, a useful reference may also be made to the decisions in M.Muthuswamy vs. Supasri Chit Funds, Coimbatore and another, reported in 2000(II) CTC 168 and Jolly George Varghese and another vs. The Bank of Cochin, reported in AIR 1980 SC 470 , for the proposition of law that before ordering the arrest, the Executing Court should follow the procedures laid down in Rules 37 to 40 of Order XXI of the Code of Civil Procedure. 13. For the reasons afore stated, the civil revision petition is found to be devoid of merits and accordingly, the same is dismissed. No costs.