BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:26/06/2009 CORAM THE HONOURABLE MR. JUSTICE M.M.SUNDRESH C.R.P.PD(MD)NO.1996 of 2008 and M.P.(MD)Nos.1 & 2 of 2008 S.K.Murugan ... Petitioner Vs. S.Seenithurai ...Respondent PRAYER Civil Revision Petition filed under Section 115 of the Civil Procedure Code, against the fair and decretal order passed by the Principal District Munsif Court, Tirunelveli in E.P.No.98 of 2007 in O.S.No.1135 of 2004 dated 08.08.2008. !For Petitioner ... Mr.P.Senthurpandian ^ :ORDER
The revision has been preferred by the judgment-debtor in the suit filed
in O.S.No.1135 of 2004 dated 08.08.2008, on the file of the District Munsif
Court, Tirunelveli.
2. A decree has been obtained by the respondent herein, for recovery of
money against the petitioner. After obtaining a decree, the respondent filed an
execution petition in E.P.No.98 of 2007, seeking arrest of the petitioner for
non-payment of the amount. A counter affidavit has been filed by the petitioner
stating that he has no means to pay the amount. The Court below has allowed the
application, by holding that in view of the evidence of the respondent and on
the failure of the petitioner to prove that he does not have means to pay the
amount, the application is liable to be allowed. Accordingly, the Court below
has allowed the application.
3. On a perusal of the order passed by the Court below, it is seen that no
enquiry has been conducted to ascertain the means of the petitioner to pay the
amount. It is the duty of the decree holder to prove that the judgment-debtor
is having sufficient means to pay the amount and the Court below after
satisfying the same by conducting the mean enquiry, thereafter, to proceed with
the order of arrest. However, in the present case, the trial Court has merely
accepted the oral evidence of the respondent and held that since the petitioner
has failed to prove that he does not have the means to pay the amount, the order
of arrest could be passed. In this connection, it is useful to refer the
judgment of the Hon’ble High Court passed in 2000 (2) CTC 168 (M.Muthuswamy Vs.
Supasri Chit Funds, Coimbatore and another) wherein, the Hon’ble High Court has
held that the execution Court should hold an enquiry and give a specific finding
as to the means of the judgment-debtor before ordering of arrest under Rule 37.
The execution Court should follow the procedure laid under Rule 39 and 40.
Similarly, in the judgment of the Hon’ble High Court reported in 2006 (3) MLJ
759 (K.Vijayan Vs. K.G.Kuppusamy and Others) it was held that the execution
Court should satisfy itself that the judgment-debtor has means to pay the decree
amount and the order of arrest cannot be passed on mere asking. If the person
does not have a means to satisfy the decree, then an order of arrest cannot be
ordered. Therefore, it is incumbent on the trial Court to conduct enquiry and
satisfy itself about the means of the judgment-debtor to satisfy the decree. In
the present case on hand, the trial Court neither conducted enquiry nor gave a
finding regarding the means of the petitioner. Hence, the order passed by the
Court below in E.P.No.98 of 2007 in O.S.No.1135 of 2004 dated 08.08.2008, on the
file of the Principal District Munsif Court, Tirunelveli is hereby, set aside
and the said E.P.No.98 of 2007 is remanded to the trial Court. The Principal
District Munsif Court, Tirunelveli is directed to conduct an enquiry on the
means of the petitioner and pass appropriate orders in accordance with law.
With this direction, the Civil Revision Petition is disposed of.
Consequently, connected Miscellaneous Petitions are closed. There shall be no
orders as to costs.
DP
To
The Principal District Munsif,
Tirunelveli.