MANICKAM Vs. MUNIAN

JUDGEMENT

(1.) This revision petition has been filed under Section 115 of the Code of Civil Procedure against an order of arrest passed by the Executing Court against the petitioner.

(2.) The petitioner filed O.S.No.195 of 1981 before the District Munsif Court, Thiruchengode against the respondents for declaration, permanent injunction and partition of the suit properties. The suit was dismissed and the Sub-Court, Sankagiri in A.S.No.71 of 1985 confirmed the Judgment and decree. Aggrieved by the same, the petitioner preferred Second Appeal No.1190 of 2001 before this Court and the same is pending. While so, the respondents herein filed R.E.P.No.37 of 2001 for recovery of costs, which was ordered by the trial as well as appellate Court being Rs.2,293.50/-. The petitioner filed a counter raising the plea of nonjoinder of proper and necessary parties and that action should be taken against the properties and only thereafter action could be taken personally against the petitioner. The Executing Court by order dated 26.07.2002, ordered arrest of the petitioner. Aggrieved by such order, this revision petition has been filed.

(3.) The learned counsel appearing for the petitioner would submit that the order of arrest has been mechanically passed and the Executing Court failed to see that the second appeal is pending before this Court and that no mesne enquiry has conducted before passing the order. In support of his contention, the learned counsel placed reliance on the decision of this Court in V.Ganesa Nadar Vs. K.Chellathai Ammal, 100 L.W. 431 and decision of the Hon'ble Supreme Court in Jolly George Varghese and another V. The Bank of Cochin, 1980 2 SCC 360.