A PUSHPANATHAN Vs. SREE DEVI FINANCIERS KARUR TOWN

JUDGEMENT

(1.) THE revision petition is against the order passed in E.P. No. 168 of 1980 in O.S. No. 438 of 1979 on the file of the Court of the Subordinate Judge at Karur, directing the arrest of the second respondent, therein, who is the petitioner herein. THE petitioner, it is stated, has pleaded in the Court below that he is a small farmer entitled to the benefits of Tamil Nadu Act XIII of 1980 and that he is not liable to pay the decree amount. THE executing Court negatived both the contentions and ordered arrest of the petitioner.

(2.) IT is clear from the order of the executing Court that there is absolutely no discussion as regards the applicability of the Tamil Nadu Act XIII of 1980 to the judgment-debtor in spite of the fact that sufficient evidence has been let in to find out whether the judgment-debtor is entitled to the protection sought for under the Tamil Nadu Act XIII of 1980. Further under section 51 proviso, clause (b) of the Code of Civil Procedure, the Court must be satisfied for reasons to be recorded in writing, that the judgment-debtor had not only the means to pay the amount of the decree or a substantial part thereof, but it must also be able to record a finding to the effect that possessing such means the judgment-debtor yet refuses or neglects or has refused or neglected to pay the same. Since there is no such finding by the executing Court the revision has to be allowed for the purpose of recording such a finding before any order of arrest is made.