IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.11.2007
CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
C.R.P. (NPD) No.2738 of 2007
and
M.P. No.1 of 2007
R.Prumal Reddiyar ..Petitioner
Versus
R.Sakthivel ..Respondent
Prayer:
This revision petition has been preferred under
Section 115 of CPC against the order dated 26.07.2007 in
E.P.No.35 of 2006 in O.S.No.72 of 2003 on the file of the
Sub-Court, Bhavani.
For Petitioner : Mr.Lakshmanaswamy, Advocate
For Respondent : Mr.T.Murugamanickam, Advocate
ORDER
This revision has been preferred against the order
passed in E.P.No.35 of 2006 in O.S.No.72 of 2003 by the
Judgment Debtor. E.P.No.35 of 2006 was filed under Order 21
Rule 37 of CPC. According to the Decree Holder/petitioner
in EP, the respondent had borrowed a sum of Rs.1,50,000/-
from the plaintiff, but failed to repay the same. Hence, he
filed the suit O.S.No.72 of 2003 before the Subordinate
Judge, Bhavani, who had decreed the suit. To execute the
decree, the Decree Holder has filed EP.35 of 2006 under
Order 21 Rule 37 of CPC r/w Section 51 & 55 of CPC. The
respondent/Judgment Debtor in his counter has stated that he
has taken steps to set aside the exparte decree and that he
has no means to pay the decree amount. Before the executing
Court, the Decree Holder had filed Ex.P.1-patta and Ex.P.2-
copy of the statement register dated 19.6.2007 to show that
the Judgment Debtor is having immovable property in his name
in S.No.61/2A and that the patta stands in the name of the
Judgment Debtor and six others. To controvert this
evidence, there was no evidence produced by the Judgment
Debtor. Only under such circumstances, the learned trial
Judge has allowed the EP and order for arrest of the
Judgment Debtor.
2.The learned counsel for the revision petitioner
relying on 100 LW 431 (V.Ganesa Nadar Vs. K.Chellathai
Ammal), contended that arrest cannot be sought as a lever to
force payment without taking recourse to proceedings for
attachment and sale of immovable property. The fact in the
above said dictum is that the Judgment Debtor in that case
had claimed benefits under Tamil Nadu Act 13/1980 and was
paying the decree amount in installments and on the failure
to pay one installment executing Court ordered arrest and
apart from the ipsi-dixit of the Decree Holder, there is no
other evidence let in to show that the Judgment Debtor had
an income of Rs.70,000/- pm. Only if there is refusal or
negligent on the part of the Judgment Debtor in paying the
decree amount, will envisage the Decree Holder to file an
application under Order 21 Rule 38 r/w 51(c) of CPC. In the
case on hand, the defence taken by the Judgment Debtor is
that he has no means, which was disproved by the Decree
Holder by adducing oral and documentary evidence before the
executing Court. The conditional order imposed by this Court
in M.P.No.1 of 2007 in CRP.(NPD).No.2738 of 2007 on 7.9.2007
has not been complied with by the revision petitioner. Under
such circumstance, I am of the considered view that it
cannot be said that the order of the executing Court in
EP.No.35 of 2006 in O.S.nO.72 of 2003 on the file of the
Court of Subordinate Judge, Bhavani, is illegal or infirm to
warrant any interference from this Court.
3.In the result, the revision is dismissed confirming
the order in E.P.No.35 of 2006 in O.S.No.72 of 2003 on the
file of the Sub-Court, Bhavani. Judgment Debtor is given a
months time to repay the decree amount. Connected
miscellaneous petition is also dismissed.
ssv
To
The Sub Judge
Bhavani.