AYYASAMY GOUNDER Vs. NACHIMUTHU GOUNDER

JUDGEMENT

(1.) THIS appeal arises in the following circumstances. The appellant, Ayyaswami Gounder, is the judgment debtor in O.S. No. 1835 of 1970 on the file of the District Munsif Court, Pollachi. On 30 -3 -1970 Nachimuthu Gounder, the respondent herein, obtained a decree for Rs. 1633 -50 against the appellant. No payment was made towards the decree and on 14 -9 -1971 the decree -holder filed E. P. 153 of 1971 under Order 21, Rule 11 (2), Civil P. C. praying for the arrest of the judgment -debtor. Notice of this E. P. was ordered and the judgment -debtor was served. As he remained ex parte on 2 -11 -1971, arrest was ordered. Thereupon, the judgment -debtor engaged counsel and filed a petition to set aside the ex parte order passed on 2 -11 -1971. This ex parte order was set aside and judgment debtor granted time to file his counter to E. P. 153 of 1971. He filed his counter in which he contended that he had no means to pay the decretal amount and that he had in his possession only a small house in Sikkilampalayam village, which was under a mortgage for Rs. 1000. The Court posted the matter for enquiry. The judgment debtor examined himself as R. W. 1 during the enquiry and the decrees -holder examined himself as P. W. 1. After hearing arguments the court below passed an order on 20 -1 -1972, allowing the petition of the decree -holder with costs and directing the judgment -debtor to be arrested by 7 -2 -1971. The order contains a full discussion of the plea of the judgment -debtor on the merits and a finding to the effect that though he had the means to pay the decretal amount, he was purposely evading payment thereof. Be it noted that this finding was arrived at after following the procedure laid down in Section 51, Civil P. C. The judgment -debtor did not challenge this order. The order therefore became binding and final.

(2.) LEARNED counsel for the appellant strongly relies on what I consider to be obiter dicta occurring in the decision of A. S. P. Ayyar, J. in Kotha Venkatasubbarao v. Sreeramulu, 1948 -2 Mad LJ 648 : (AIR 1949 Mad 470). In that case, the judgment -debtor pleaded that he had no means to pay the decretal debt. But the executing court simply rejected that contention without recording the reasons contemplated in Section 51, Civil P. C. and without finding positively that the judgment -debtor had had, since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and had refused or neglected to pay the same, or that, after the institution of the suit in which the decree was passed, he had dishonestly transfered, concealed or removed any part of his property, or committed any other act of bad faith in relation to his property within the meaning of Section 51 (a) (2) and (b), or that he was likely to abscond, or leave the jurisdiction of the court within the meaning of Section 51 (a) (1). It was urged for the decree -holder in that case that the judgment -debtor was on a former occasion ordered to be arrested and that full reasons had been then given by the court for his arrest and that was why the lower court failed to give reasons for its order upon the fresh E. P. filed on the subsequent occasion. The learned Judge rejected this contention on the ground that the court acted without jurisdiction in ordering the arrest of the judgment -debtor without recording its reasons under Section 51, Civil P. C. This is the ratio decidendi of that ruling. But, while laying down that ratio the learned Judge went, if I may say so with respect, beyond the necessities of the situation to make the following remarks by way of obiter.