G. SENTHIL KUMAR Vs. G. MURALI

JUDGEMENT

(1.) The plaintiffs, aggrieved by the order passed by the learned First Additional District and Sessions Judge (PCR), Tiruchirappalli, in rejecting their petition filed under the provision of Order 38 Rule 5, are the revision petitioners before this Court.

(2.) The brief facts, which are necessary for appreciating the issue on hand, are herein below narrated and the parties are referred to in the same array before the District Court:-

(3.) Mr.R.Vigneshwaran, learned counsel appearing on behalf of the petitioners/plaintiffs would vehemently argue that the defendants have executed two promissory notes, which were later clubbed into in single one and a fresh promissory note obtained and had also received money from the said Surya Finance through the good offices of the second plaintiff. Since the loan was given at the behest of the second plaintiff, the second plaintiff was morally bound to settle the dues to the said Surya Finance, which he had done with the financial assistance from the first plaintiff. He would submit that once borrowing has been proved and the factum of the properties being encumbered to avoid creditors has been established, the learned Judge ought not to have dismissed the application as the schedule property was only an unencumbered property of the second defendant. If when the suit is decreed, the plaintiffs would be left with no security for recovering the decree amount. He would therefore submit that the order of the learned Judge suffers from a grave irregularity, since the plaintiffs have shown a prima facie case. He would further argue that there has been no response to the legal notice and therefore, an adverse inference of admission of liability has to be inferred.