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2019 DIGILAW 483 (MAD)

Selvaraj v. J. Cyril Selvaraj

2019-02-21

S.RAMATHILAGAM

body2019
JUDGMENT : 1. This Civil Revision Petition has been preferred against the order passed in E.P.No.41 of 2014 in O.S.No.240 of 2010. 2. The execution petition was filed by the respondent/decree holder for recovery of money from the petitioner/judgment debtor with future interest and cost. On 10.08.2013, decree was passed and as per decree, the petitioner herein has to pay a sum of Rs.6,58,050/- towards the suit claim with interest and cost. Hence, the respondent/decree holder has filed the execution petition claiming the said decree with cost along with interest till realisation of the said amount. 3. The petitioner /judgment debtor has filed his counter affidavit before the Executing Court, contended that he has preferred the appeal against the Judgment and Decree passed in O.S.No.240 of 2010 before the learned Subordinate Judge, Nagercoil. Since the said appeal is pending, the present Execution Petition was filed by the respondent/decree holder is not maintainable. It is also contended that the entire matter has been settled between one G.Panner Selvam and the respondent/decree holder, only to blackmailing the petitioner/judgment debtor, the execution petition was filed without impleading an another defendant namely Panneer Selvam. It is further contended that there was a collusion between the said Paneer Selvam and the respondent/decree holder herein. The execution petition is not maintainable because of non-joinder of Paneer Selvam and he is a necessary party to the execution petition. The further contention raised by the petitioner herein that he is not having any cash to discharge his debt. It is utterly false to say that the petitioner/judgment debtor is having sufficient means to pay the amount. 4. The learned counsel for the petitioner/judgment debtor would further contend that the execution petition to arrest is not maintainable and the petitioner/judgment debtor preferred an appeal along with condone delay petition. The petitioner/judgment debtor is a poor car driver residing in the house which is exempted from attachment. 5. After observing all the facts, the Executing Court has given a finding that during the said enquiry, it has been recorded by the Executing Court in E.P.No.41 of 2014 that the “Respondent present. Petitioner called absent, no representation. Heard the respondent. Petitioner side records perused and taken up as heard”. After that, the Execution Court has passed an order that when there is no specific decree against a particular judgment debtor, the petitioner can execute the decree against any of them. Petitioner called absent, no representation. Heard the respondent. Petitioner side records perused and taken up as heard”. After that, the Execution Court has passed an order that when there is no specific decree against a particular judgment debtor, the petitioner can execute the decree against any of them. Further, the respondent/decree holder would contend that the petitioner/judgment debtor has sufficient means to pay the amount. But he fails to pay. This contention is not denied by the petitioner/judgment debtor. At this juncture, the petitioner/judgment debtor vehemently contended that when the decree holder was not present before the enquiry on execution petition, the finding of the Executing Court that “this contention is not denied by the petitioner herein, when there is no appearance for the respondent/decree holder for making such denial. The findings of the executing Court as above is very much improper. Further, the learned counsel would contend that when the means is very much denied by the petitioner/judgment debtor in the absence of any representation on behalf of the decree holder, the finding of the Executing Court that the contention is not denied by the petitioner/judgment debtor is a false one. 6. Now both the counsel are present. The learned counsel for the petitioner/judgment debtor sought only for means enquiry. Since the Executing Court has ordered for arrest, there is a strong averment in the counter statement that the petitioner/judgment debtor has no sufficient means to pay the decree amount and the order of arrest passed by the Executing Court is not justifiable. Hence, the petitioner herein seeking to set aside the order of the Executing Court, only then the Executing Court can pass an appropriate order. 7. I have heard the rival submissions made by both counsel. 8. In view of the representation made by both parties, already the matter was also referred before Lok-Adalath but it was not settled. At present, the petitioner herein is not willing to make any payment towards decree amount. He has insisted before this Court for means proof and proper enquiry by the Executing Court. 9. Considering the year of the suit and the status of the case as on date, this civil revision petition is allowed. At present, the petitioner herein is not willing to make any payment towards decree amount. He has insisted before this Court for means proof and proper enquiry by the Executing Court. 9. Considering the year of the suit and the status of the case as on date, this civil revision petition is allowed. The Executing Court is directed to enquire the issues regarding the means of the petitioner/judgment debtor and to dispose the E.P.No.41 of 2014 within a period of two weeks from the date of receipt of a copy of this order and the same has to be reported before this Court, without any further delay. 10. The learned counsel for the respondent/decree holder would submit that already the petitioner/judgment debtor has deposited a sum of Rs.2,00,000/-. Hence, the respondent/decree holder is at liberty to withdraw the said amount. 11. With the above directions, this Civil Revision Petition is allowed. No costs. Consequently, the connected miscellaneous petitions are closed.