M M SALEEM Vs. R PRAVEEN KUMAR REDDY

JUDGEMENT

(1.) This revision is by the Judgment-debtor/respondent in E.P.No.1805/2002 on the file by the IX Assistant Judge City Civil Court, Chennai.

(2.) The respondent/decree-holder had filed O.S.No.11006/1996 for recovery of money and the suit was decreed by Judgment and decree dated 12.03.2002 and to realise the decree amount, the respondent filed E.P.No.1805/2002 and sought the assistance of the Court for arrest and detention of the Judgment-debtor under Order 21 Rule 37 & 38 CPC. The petitioner/Judgment-debtor filed a counter in the execution petition stating that he has not been served with the copy of the means affidavit filed along with the execution petition and that it is mandatory on the part of the decree-holder to serve copy of such affidavit. It was further stated that his business has deteriorated and he is penniless and his mother is taking care of his family from the pension received by her. The Execution Court by its order dated 09.03.2004, ordered arrest of the petitioner. The Executing Court by relying upon the decision of this Court in Chinnaraj and another Vs. Kanthasamy 2000 (IV) CTC 481, held that there is no necessity to cause an enquiry or afford any opportunity to the Judgment-debtor and proceeded to order arrest. Aggrieved by such order, the petitioner is before this Court.

(3.) The learned counsel appearing for the petitioner would submit that the Executing Court committed an error in invoking the provisions of Order 21 Rule 37 & 38 CPC, without any material particulars especially when, there is no allegation made by the respondent/decree holder that the petitioner/Judgment-debtor has committed any act with the object, of delaying the execution of the decree or that he is likely to abscond or leave the local limits of the jurisdiction of the Court. It is further contended that the Executing Court failed to consider the counter filed by the petitioner, wherein it has been specifically stated that the means affidavit has not been served. Further, it is submitted by the learned counsel that the Judgment relied on by the Executing Court in the case of Chinnaraj and another Vs. Kanthasamy 2000 (IV) CTC 481, referred supra, is not applicable to the facts and circumstances of the present case and the Executing Court has mechanically ordered arrest without rendering a specific finding alleging that the petitioner had intention to delay the execution of the decree. Further, it is contended that the Court below ought to have read Order 21, Rule 37, 38 & 40 in conjunction and not in isolation. The learned counsel relied on the decisions of this Court in support of his contentions: M.Muthuswamy Vs. Supasri Chit Funds, Coimbatore and another, 2000 (II) CTC 168, N.C.Duraisamy Naidu Vs. K.Pappaiya Naidu, 2007 (3) CTC 67 and the decision in Parkash Chand V. Punjab National Bank and others, AIR 1999 Punjab and Haryana 79.