BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 09/10/2009 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN CRP(PD)No.27 of 2009 Mp.NO.1/2009 A.S.Venkatesan petitioner Vs Velayutham respondent Prayer This Civil Revision Petition is filed against the order of the learned Subordinate Judge, Uthamapalayam, Theni District dated 13.11.2008 made in EP.No.35/2007. !For Petitioner ... Mr.T.Lenin Kumar ^For Respondent ... No Appearance :ORDER
This Civil Revision Petition is filed against the order of the
learned Subordinate Judge, Uthamapalayam, Theni District dated 13.11.2008 made
in EP.No.35/2007 ordering arrest of the petitioner.
2. A decree for money for a sum of Rs.1,62,575/- has been passed
against the petitioner and the same was sought to be executed by the respondent
by his arrest and detention in civil prison in EP.No.35/2007 under Order 21 Rule
38 of CPC. On a notice having been sent to the petitioner, he filed an objection
to the effect that he had no means in his possession and denied the allegation
made by the respondent that he possessed land and a house property in
Kallakuruchi and also a cash of Rs.5,00,000/- in hand which he is utilising for
money lending business.
3. The learned Subordinate Judge, Uthamapalayam on the evidence on
record has found that the house in which the petitioner is in occupation should
be presumed to be his own house in the absence of any evidence adduced on behalf
of the petitioner as to who is the owner of the house and what is the rent paid
by the petitioner if it is a rented house. The learned Subordinate Judge has
found that in such circumstances the petitioner would be deemed to have
sufficient means and ordered arrest of the petitioner.
4. It has been urged on behalf of the petitioner that the finding
rendered by the court below presuming that the petitioner who was in a position
to give the four boundaries of the house in which he is residing will be deemed
to have been in possession of the said house as owner, thereby throwing the onus
on the petitioner/ judgement debtor is perverse and the same is vitiated. He
would rely upon the decision of this court rendered in the case of Ganesh Vs.
Sankaran and another [2006-3-CTC-546] contending that the executing court has
not given a finding as to the correct means of the judgement debtor to discharge
the decree before ordering arrest under Rule 38 of Order 21 of CPC. He would
contend that the executing court did not observe the principles laid down by
the Honourable Supreme Court in the cases of Tharmapitchai Vs. ACA.Funds,
Tirunelveli [1995-2-CTC-20] and Jolly George Varghese Vs. Bank of Cohin [AIR-
1980-SCC-470].
5. On the other hand, it is urged by the respondent that the finding
of the executing court cannot be said to be perverse inasmuch as on the facts
established a presumption of fact naturally followed that the petitioner
possessed sufficient means and a finding based on such a presumption cannot be
vitiated.
6. Admittedly the respondent has not given any particulars regarding
the land and house property allegedly owned by the petitioner. The only
statement made by the respondent that the judgement debtor has got lands and a
house and also possessed of cash of Rs.5,00,000/- which is given on rotation for
money lending business is without any basis. It is for the decree holder to
prove by evidence on record that the judgement debtor actually possessed lands
and a house and he would not succeed merely by giving vague statements without
giving any details of such assets owned by the petitioner.
7. Under Section 51(b) of CPC, the decree holder has to satisfy the
court that the judgement debtor has or has had since the date of the decree the
means to pay the amount of the decree or some substantial part thereof. In the
instant case, there is nothing on record to show that the judgement debtor
concealed any assets. There could be no such natural presumption as urged by
the respondent that merely because a person is able to give the four boundaries
of the house in which he is residing, it would lead to a presumption that it is
his own house.
8. The arrest and detaining a person in prison for non payment of
money is an extraordinary step and the method of execution by way of arrest
should be resort to by the court only when it is satisfied on cogent evidence
that the judgement debtor has or has had since the date of the decree the means
to pay the amount of decree.
9. The word “means” occurring in Section 51 of CPC can only mean
realisable assets viz. sufficient assets from out of which the necessary monies
can be realized to pay to decree amount. Even assuming that the petitioner was
residing in his own house, the mere occupation of a house as his residence
cannot be taken as a decisive factor to conclude that he possessed means to pay.
10. In the instant case, the respondent has not proved the
circumstances from which a factual inference could be drawn that the
petitioner/judgement debtor had sufficient means but in spite of it he
deliberately failed to pay the decree amount.
11. It is unfortunate that the executing court drew inference
against the judgement debtor by completely omitting from consideration the
circumstances which emerged out from the evidence on record to come to a
conclusion that the petitioner/judgement debtor has possessed means. A court
must always be hesitant to send a judgement debtor to prison unless it is found
that the judgement debtor had been always dishonest, contumacious and deliberate
in his conduct in avoiding the decree passed against him. In the instant case,
I do not find any such evidence on record.
12. As a result of the discussions made above, I set aside the
impugned order passed by the executing court and in the result, this Civil
Revision Petition stands allowed. No costs. Consequently, the connected MP is
closed.
Srcm
To:
The T Subordinate Judge, Uthamapalayam