IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.08.2009 CORAM: THE HON'BLE MR.JUSTICE V.PERIYA KARUPPIAH C.R.P. (NPD) No.4041 of 2008 N.Sekar .. Revision Petitioner Vs. Lakshmi .. Respondent Prayer:-This Civil Revision Petition has been filed under Article 227 of Constitution of India against the order, dated 26.08.2008, in REP.No.266 o 2007 in O.S.No.32 of 2001 on the file of the Additional Subordinate Court, Salem. For Petitioner : Ms.P.T.Asha For Respondent : Mr.T.Gowthaman ORDER
This revision has been filed by the petitioner, who is the judgment Debtor, against the order passed by the lower Court (EP Court) in REP.No.266 of 2007 in O.S.No.32 of 2001.
2.The respondent/decree holder had launched the execution proceedings for the arrest of the respondent under Order 21 Rule 38 of CPC and to put him in prison since he has not paid the decree amount in one lumpsum. The Execution Court had, after hearing the arguments of both sides, on 31.07.2008 allowed the petition and posted for payment. However, the petitioner/judgment debtor had filed the counter stating that he was working as Assistant and already a sum of Rs.48,000/- had been realised by the way of attachment of his salary in REP.5 of 2004 and the present petition has been filed with the object of harassing the petitioner herein/judgment debtor. The said contention was not accepted by the lower Court and the petition was allowed.
3.Heard Ms.P.T.Asha, learned counsel for the petitioner and Mr.T.Gowthaman, learned counsel for the respondent.
4.According to the submissions made by the learned counsel for the petitioner, the lower Court did not examine any witness on the side of the petitioner in EP/decree holder to come to a conclusion that the respondent in EP/judgment debtor has got sufficient means to pay the decree amount in one lumpsum, but it had come to the conclusion of allowing the petition and ordered payment and in default of such payment, to arrest the petitioner /Judgment debtor, which is not in accordance with law. She would also submit that unless the means is proved by the decree holder, no arrest order can be passed against the judgment debtor. Therefore, the order of the lower Court has to be interfered and set aside and thus the revision petition may to be allowed.
5.The learned counsel for the respondent would submit in his argument that the petitioner is working as an Assistant in Co-operative Bank still and he has got means to pay in one lumpsum and the amount ordered by the trial Court was on the basis of the capacity to pay the amount by the petitioner and therefore, the lower Court satisfied itself before passing the order of arrest and the order passed by the lower Court is perfectly correct.
6.Considering the submissions made by both sides, I could see that the lower Court did not examine any person before passing the order on 31.07.2008. It has been specifically endorsed no oral evidence on either side on 22.07.2008. The lower Court ought to have decided about the means of the judgment debtor before passing any order in the EP for arrest and there is no speaking order to that effect passed by the lower Court. Admittedly, the petitioner/judgment debtor had paid a sum of Rs.48,000/- from out of his salary. During the rest period, as contemplated under Section 60 of CPC, the capacity of the petitioner cannot be ascertained on the basis of his salary withdrawn by him. Therefore, the order of the lower Court in passing the order without satisfying itself over the means of the Judgment Debtor/revision petitioner is an illegal order and therefore, it has to be set aside.
7.Accordingly, the order of the lower Court is set aside and the Revision is allowed. Connected Miscellaneous Petition is closed. No costs.
ssv
To
The Additional Subordinate Court,
Salem
