DASAN ALIAS DEVADASAN Vs. DHARMARAJAN

JUDGEMENT

(1.) In this Civil Revision the judgment debtor impugns orders passed by the Execution Court in E.P. No. 180 of 2002 filed for the execution of a money decree directing the judgment debtor's arrest and detention on the basis of a finding that the judgment debtor in spite of means has willfully neglected to pay off the decree debt.

(2.) The ground which is prominently raised in the memorandum is that E.P. No. 180/2002 was barred by principles of res judicata as envisaged by Explanation VII to Section 11 of the Code of Civil Procedure. Sri. K.G. Balasubramanian, the learned Counsel for the petitioner has placed before me a copy of the order dated 31-3-2000 passed by the court below in a previous Execution Petition filed by the respondent. That order is issued on the basis of a finding that the petitioner did not have the means to pay off the decree debt and also that the petitioner's health condition at that time will not permit him to undergo imprisonment. The learned Counsel would argue that principles of res judicata as clarified by Explanation VII to Section 11 apply and the earlier order operates as res judicata for the present Execution Petition.

(3.) Attractiveness of the arguments notwithstanding, I am not inclined to accept the same. Admittedly, the present Execution Petition is not time barred and the decree has not been satisfied in full yet Findings. In the earlier order that the petitioner does not have sufficient means to pay off the decree debt and that the petitioner's health condition will not justify his imprisonment in civil prison are findings rendered by the court with reference to the point of time when those questions were enquired into in that Execution Petition and the order thereon was passed. Those findings will not operate as res judicata for the present E.P. in which arrest is sought on the basis of the judgment debtor's financial position and wilful neglect at a much later point of time. In the present Execution Petition which is concededly not time barred, the prayer is to allow execution by arrest and detention of the judgment debtor on the allegation that the judgment debtor has acquired requisite means to pay off the decree debt and yet neglected to pay off the same. The present Execution Petition refers to the previous execution petition. Obviously, the case is that after the disposal of the previous Execution Petition the petitioner has come to acquire sufficient means to pay off the decree debt or substantial portion thereof and yet is neglecting to make payments. It is that case which was resisted by the petitioner. The petitioner did not contend before the Execution Court that the prayer for arrest is barred by res judicata. He only contended that the allegation that he has acquired means is wrong.