SIRIYAPUSHPA RATNAM Vs. PERUMAL NADAR

JUDGEMENT

(1.) This is a revision petition filed against the order in E. P. No. 413 of 1980 in O. S. No 939 of 1979 passed on 20th August, 1981 by the Principal District Munsif of Nagercoil in a petition for arrest of the judgment-debtor to realise the decree amount under Order 21, rules 37 and 38, Civil Procedure Code. The learned Principal District Munsif, after having taken into consideration the evidence of P. W. 1, the decree-holder as well as the contents of Exhibits A-1, copy of the judgment, dated 31st July, 1979 in O. S. No. 844 of 1978 on the file of the Court of the learned District Munsif, Nagercoil and the evidence of the respondent, the judgment-debtor as R. W. 1 and the contents of ExhibitB-1 the copy of the income certificate, dated 30th September, 1980 issued by the Tahsildar (held that the judgment debtor comes within the Act). The case of the decree-holder before the lower executing Court was that the respondent-judgment-debtor is working in the Arulvoimozhi Spinning Mill getting a monthly income of Rs. 550, that besides, the respondent owns a taxi and other immovable properties. Hence, the judgment-debtor has means to pay the decree amount. On the other hand, the judgment-debtor filed before the lower Court a counter inter alla contending that his income as an employee in the spinning millis Rs. 356.31 and he has no other property. He denied owning a taxi and getting income by running the taxi. He claimed benefits of the Tamil Nadu Act XIII of 1980.

(2.) The learned District Munsif held that the judgment-debtor has no means to pay the decree amount. He has also held that the judgment-debtor is a debtor under the Act XIII of 1980, and the decree abates under section 4 (1) (c) of the Act XIII of 1980. Hence the learned District Munsif held that the petition for arrest of the judgment-debtor to realise the decree amount under Order 21, rules 37 and 38 of the Civil Procedure Code, is not maintainable. The lower Court has also found that the judgment-debtor is entitled to the benefits of the Act XIII of 1980.

(3.) It is contended in this revision petition by the learned counsel for the revision petitioner/decree-holder that the lower Court had taken into consideration Exhibit B-l, the copy of the income certificate issued by the Tahsildar dated 30th August, 1980 and it has solely relied upon the same and given its finding that the judgment-debtor is entitled to the benefits under the provisions of the Act XIII of 1980. This, according to the learned counsel for the revision petitioner, is against the decision Perumal v. Chinna Kuppanna Gounder1. The following observation of Ratnam, J., is relied on by the learned counsel for the revision petitioner: