IYYAM PERUMAL Vs. CHINNA GOUNDER

JUDGEMENT

(1.) It is contended an behalf of the revision petitioner/second defendant judgment-debtor, referring to the decision in Jolly George- Verghese v. Bank of Cochin, which has been followed by this Court in the decision rendered by Balasubrabmanyan, J. in Anuma Gounder v. Pormusami, and bearing in mind ft observation of the Supreme Court as well as the decision arrived at by this Court, when the grievance of the revision petitioner is dealt with, certainly it would be seen that the order now impugned is revisable under Sec. 115, C. P. C. It is further contended that the order pronounced by the lower Court on 25-1-1982 in R.E.P. 195 of 1981 in 0. S. 201 of 1981, on the file of the learned- District Munsif, Mettur Dam, the petition filed by the respondent herein plaintiff-decree-holder under 0. 21, Rules 11 and 32 and 38 of the Civil P. C., for arrest of the revision petitioner herein for recovery of Rs. 3,876-40 being the decree amount and costs, is certainly revisable, because, on the day of hearing of the said petition, the revision petitioner herein went late to the Court and the said belated appearance of the revision petitioner hereinbefore the lower Court was neither wanton nor willful. In this regard, the learned counsel for the visional petitioner would also point out the following endorsement incorporated in the docket of the petition, R. E. P. 195 of 1981, on 14-10-1981, as well as on 31-10-1991. (14-10-1981: - Further proceedings stayed. Application ordered in 1. A. 362 of 1981 in A. S. 184 of 1981 of District Court, Salem. Conditional order passed. Stay till 23-101981 (on 23-10-1981) the Presiding Officer was on leave and re posted to 31-10-1981). 31-10-1981 :- Conditional order passed L R. 2 served. Mr. K. M. N. for respondents. Counter and payment of Rs.400/- by 5-12-1981." It is contended by learned counsel for the revision petition" that whom an appeal has been preferred to the District Court and that the same had been pending and when an order of stay of execution was also obtained, it is not quite in accordance with the law that the learned District Munsif had ordered arrest of the, revision petitioner herein by 22-2-1982, observing that there was no counter filled and that no payment was made as per the order of the learned District Munsif dated 31-10-1981, especially when the revision petitioner herein was not present at the time when the petition was called. To substantiate their contention, the learned counsel for the revision petitioner would point out the contents of the counter filed by the revision petition" on the very same date of the impugned order It is pointed out by the learned counsel for the revision petitioner that the, counter was ready to be Med even o4 25-1-19&2, viz., the date of adjournment of the petition for counter and it was filed in the office of the learned District Munsif, who had delivered the order for arrest on the very same day. In this view, the order becomes revisable, is the submission made by the learned counsel for the revision petitioner herein.

(2.) On the other hand, the learned counsel for the respondent herein would vehemently contend that the respondent herein filed R. E. P. 195 of 1981 under O. 21, Rr. 11 and 32 and 38 with the said O, 21 and in this regard when the provisions of O.21, R. 37 as well as O. 21, R. 40, Civil P. C. are gone through, it will be clear that even after arrest, there would be sufficient opportunity to the revision petitioner herein to put forth his case and as such, the impugned order cannot be revised under the provisions of S. 115, Civil P. C. The point for consideration is: Whether the order of the learned District Munsif dated 25-11982 in R. E. P. No. 195 of 1981 in 0. S. 201 of 1981 is revisable under S. 115. Civil P. C.?

(3.) It admits of no doubt that the revision petitioner herein was not present in Court on the date on which the order was pronounced viz., 25-1-1982. On that day, the revision petitioner herein had been given an opportunity to file the counter to the said petition, R. E. P. 195 of 1981. He was also directed to pay Rs. 400/- by 5-12-1981 on 31-10-1981, and there was extension of time for the said purpose on several dates subsequently. Finally on 23-1-1982, it was ordered by the learned District Munsif that the counter and payment of Rs. 400/- had to be made on 25-1-1982. when the revision petitioner was not present in Court. The order under revision had been pronounced by the lower Court, which runs as follows- "No counter. No payment. Respondent called absent. Set ex parte. Means proved by affidavit. Arrest by 22-2-1982 6atta in 3 days." The learned counsel for the respondent herein would contend that O. 21, Rule 37, C. P. C. provides as follows