IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :19-10-2010 CORAM THE HONOURABLE MR. JUSTICE V.PERIYA KARUPPIAH CRP.NPD.Nos.3370 and 3371 of 2008 & M.P.No.1 of 2008 M/s. Shri Parvatham Textiles No.28, Laxminarayan Nagar Erode-638 003 Rep. by its Sole Proprietor Mr.A. Venkatesh .. Revision petitioner in both the petitions. Vs. M/s. Chona Financial Services P. Ltd No.46, Prakasam street T. Nagar, Chennai-600 017 Rep. by Managing Director Mr.E.M.C. Palaniappan .. Respondents in both the petitions. Prayer :-These revisions have been filed under Article 227 of Constitution of India against the orders passed in E.A.450 of 2007 and E.A.488 of 2007 in E.A.No.522 of 2006 in E.P.219 of 2005 on the file of 1st Additional Sub-court, Erode dated 04.09.2008. For Petitioner : Mr.V. Lakshminarayanan For Respondent : No Appearance ORDER
C.R.P.NPD.No.3370 of 2008:
This revision has been filed against the order of dismissal passed by the lower court in E.A.No.450 of 2007 in E.P.No.219 of 2005 in award No. F&O CH 03/04 dated 12.10.2004, an application to recall the arrest warrant issued in E.A.No.522 of 2006.
C.R.P.NPD.No.3371 of 2008:
This revision has been filed against the order granting police aid in E.A.No.488 of 2007 in E.P.No.219 of 2005 in award No. F&O CH 203/04 an application for the grant of police aid for the arrest of the petitioner.
2. Learned counsel for the petitioner in both the revisions would submit in his argument that the lower court had an erroneous view and dismissed the application filed by the petitioner for recalling the arrest warrant issued against the petitioner but had also ordered police aid to effect the arrest warrant and it has not considered the concept of issuing arrest warrant under Order 21 Rule 41 (3) CPC but it had mechanically passed an order when it was complied by the petitioner as per Order 21 Rule 41(2) CPC. He would further submit in his argument that it is true that the revision filed by the petitioner in C.R.P.NPD.No.58 of 2007 against the order passed in E.A.No.256 of 2006 questioning the arrest, was dismissed but in the said order it has been ordered to keep open E.A.No.256 of 2006 and E.A.No.522 of 2006 and on such opening of those petitions, the petitioner had complied with Order 21 Rule 41(2) CPC by filing an affidavit subsequent to the disposal of the revision and therefore, the order passed under Order 21 Rule 41(3) CPC cannot be continued at this stage. He would also submit in his argument that this court has come to a conclusion in the earlier revision that the petitioner has filed his objections stating that he is not doing any business and on not complying with the direction ordered under Order 212 Rule 41(2) CPC it had confirmed the order passed by the execution court. He would also submit in para 19 of the said order it has been categorically found by this court that the petitioner has not complied with Order 21 Rule 41(2) CPC to the direction issued by the executing court to produce the documents shown as assets and income and the same was not complied with and after the confirmation of order of arrest passed by this court in the aforesaid revision, it had also ordered to keep open E.A.256 of 2006 and E.A.522 of 2006 where the direction of arrest of the petitioner was ordered. He would further submit in his argument that the petitioner has thereafter filed an affidavit as contemplated under Order 21 Rule 41(2) CPC regarding his assets and therefore, the order passed by the lower court to arrest the petitioner should have been recalled and the application filed by the petitioner to that effect was not considered but dismissed. He would further submit in his argument that contrary to the provisions, the lower court had also ordered police help to the decree holder for arresting the judgment debtor on a civil liability. Therefore, he would request the court to interfere and set aside the order passed by the lower court in dismissing the plea to recall arrest warrant and to reverse the ordering of police aid to cause the arrest of the petitioner.
3. No appearance on behalf of the respondent.
4. I have given anxious thoughts to the arguments advanced by the learned counsel for the petitioner. I have also perused the papers and the orders passed by the lower court and the order of this court made in C.R.P.NPD.No.58 of 2007 dated 01.02.2007. The admitted facts would be that the petitioner is a judgment debtor against whom the respondent has launched an execution for arresting him in the event of not paying the decree amount. The petitioner has disputed his means to pay the decree amount in his counter and therefore, the enquiry has been commenced in the EP. In the meanwhile, an application has been filed under Order 21 Rule 41 CPC in E.A.No.256 of 2006 seeking for a direction against the judgment debtor to state his assets before the court and it was duly ordered by the lower court. Since the judgment debtor did not furnish particulars an application in E.A.No.522 of 2006 was filed by the decree holder and the lower court had passed an order of arrest for willful disobedience of the orders of the lower court dated 17.11.2006 in E.A.No.256 of 2006. Against which the petitioner/judgment debtor had preferred a revision before this court in C.R.P.NPD.No.58 of 2007 and the same was dismissed confirming the order passed in E.A.No.522 of 2006. However, this court had directed the lower court to keep open E.A.No.256 of 2006 and E.A.No.522 of 2006 and to restore both the applications and to proceed with the matter in accordance with law.
5. The only point under which this court had come to a conclusion of dismissing the revision was that the judgment debtor has not complied with the directions as given by the lower court in E.A.No.256 of 2006 it has been dealt with in para 18 of the said order which would run as follows:
“18. The Execution court heard both sides in E.A.No.256 of 2006 and allowed the application by observing as under:
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Therefore, the lower court order was confirmed by this court in the earlier occasion. However, it had directed the lower court to restore the applications in E.A.No.256 of 2006 and E.A.No.522 of 2006. Therefore,it is quite possible for the petitioner/judgment debtor to avail the opportunity to comply with the said provisions and directions passed in E.A.No.256 of 2006. It is not in dispute that there was no time limit granted by the lower court for complying with the directions in the said order under Order 21 Rule 41 (2) CPC. The petitioner has filed an affidavit as contemplated under Order 21 Rule 41(2) CPC on 03.12.2007, before the lower court with the particulars of his assets as nil and sought for recalling of the arrest warrant ordered against him by the lower court. But it was not considered by the lower court since the arrest order passed by the said court was already confirmed by this court. In order to come to a correct conclusion the extraction of Order 21 Rule 41(2) and (3) are necessary. Order 21 Rule 41 (2) and (3) would be as follows:
” 41. Examination of judgment-debtor as to his property.
(1)………
(2) Where a decree for the payment of money has remained unsatisfied for a period of thirty days, the Court may, on the application of the decree-holder and without prejudice to its power under sub-rule (1), by order require the judgment-debtor or where the judgment-debtor is a corporation, any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2), the Court making the order, or any Court to which the proceeding is transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the expiry of such term the Court directs his release.
On a careful perusal of the said rules, the directions as given by the lower court for producing the particulars of his assets would be in the form of an affidavit. It is not meant that the assets of the judgment debtor should have been furnished in the case, eventhough no assets are available with the judgment debtor, the judgment debtor could not file a positive affidavit when he is not the owner of any assets. Therefore, whatever the particulars submitted in the affidavit of assets filed on 03.12.2007 should have been accepted as obedience to the order passed by the lower court. Whether the affidavit filed by the petitioner is not containing the particulars or any suppression of facts have to be decided in the full fledged enquiry regarding the ‘means’ of the judgment debtor and not now.
6. Therefore, this court could see that the lower court had not followed the directions given by this court in CRP in restoring the applications in its file. On restoration, it is for the judgment debtor to comply with the directions already given by the said court and accordingly when he has complied with the said order by filing an affidavit on 03.12.2007. The lower court should have followed the provisions under Order 21 Rule 41 (2) and (3) CPC, combined by and to recall the warrant of arrest and to proceed further in the EP enquiry and to pass suitable orders therein. But, the lower court has not strictly followed the provisions of Order XXI Rule 41(2) and (3)CPC but had dismissed the application for recalling arrest warrant but ordered police aid, for a civil arrest. Therefore, it has become necessary for this court to interfere and set aside the orders passed by the lower court.
7. For the foregoing discussion, this court is of the view that the orders passed in E.A.No.450 of 2007 is not sustainable, in view of the compliance of the judgment debtor as per Order XXI Rule 41 (2) CPC subsequent to the disposal of the earlier revision before this court, and the executing court ought to have considered this and should have allowed the said application to recall the arrest warrant and therefore, the order passed in E.A.No.450 of 2007 is set aside and the application to recall arrest warrant before the lower court is allowed. Consequently, the order passed in E.A.No.488 of 2007 is set aside and the application in E.A.No.488 of 2007 is therefore dismissed.
8. With the aforesaid directions, both the revisions are allowed. No order as to costs. Connected miscellaneous petition is closed. The execution court is directed to proceed in the means enquiry in the execution petition and to find out the means of the petitioner/judgment debtor and to pass orders in accordance with law.
19.10.2010.
Index :Yes/No Web :Yes/No kpr To, The First Additional Sub-court Judge, Erode V.PERIYA KARUPPIAH, J. kpr pre-delivery order in CRP.NPD.Nos.3370 and 3371 of 2008 & M.P.No.1 of 2008 19.10.2010