SATHYAMURTHY Vs. VASAN FINANCE CORPORATION

JUDGEMENT

(1.) THIS revision petition raises a very interesting question of law which, of course, arises in turn out of the consideration whether the order of the Court below, which is the subject-matter of this revision petition is revisable under section 115, Civil Procedure Code. Mr. R. Chandrasekaran, learned counsel for the petitioner contends that the lower Court had not taken into consideration whether the judgment-debtor has got sufficient means to pay the debt in, accordance with the provisions of section 51 Civil Procedure Code, as well as Order 21, rules 37, 38 and 40, Civil Procedure Code, and as such, this order under revision is liable to be revised by this Court. On the other hand, Mr. G. Krishnan, learned counsel for the respondent submits that it is not as if the judgment-debtor has not gone into the box and deposed about the situations that are prevailing at the time of the hearing of R.E.P. No. 266 of 1980. The order made in the above petition, i.e., R.E.P. No. 266 of 1980 is now the subject-matter of this revision. In fact, the learned counsel for the respondent had himself admitted that he has got a share in a property to which he had made a claim in a suit that has been pending in the Sub-Court, Tiruvannamalai, and this is quite adequate to satisfy an order as prayed for under the provisions of Order 21, rules 37 and 38, Civil Procedure Code under which provision the petition was filed by the decree-holder for the realisation of the decree amount by arrest and detention of the petitioner herein. In this. regard, the learned counsel for the respondent refers to a decision in K. P. Mohamed Ibrahim v. State Bank of Travancore, Trivandrum 1for the following proposition:

(2.) THE learned counsel for the respondent further refers to the observations of his lordship S. Ramachandra Iyer, CJ., at page 234 and they are as follows:

(3.) BEARING in mind the observations of the Supreme Court in the above decision in Jolly George Varghese v. The Bank of Cochin,2this Court considers that even a minimum adherence to the requirement of the Court of the relevant provisions of the Code had not been complied with in the present case by the lower Court and, as such, the order becomes revisable. In other words, this revision petition is to be allowed, because there is absolutely no material available on record to come to a definite conclusion that the petitioner herein has got sufficient means to discharge the debt, for which the respondent herein wanted the remedy of arrest. It is the fundamental principle of any jurisprudence that a Court, which had been armed with such an extraordinary power of arrest for the debt incurred by a debtor, especially when such a prayer is made by the creditor, should take into consideration and apply its mind to the several circumstances that are placed and come to a definite conclusion as to whether the sufficiency of the means or satisfying the decree debt has been established or not. This is actually what has been laid down by the Supreme Court in Jolly George Varghese v. The Bank of Cochin2 which has been followed by this Court in Anama Gounder v. A. C. Ponnuswami.