LAWS(MAD)-1995-11-22

SARAVANAN Vs. ANNAMALAI

Decided On November 13, 1995
SARAVANAN Appellant
V/S
ANNAM ALAI Respondents

JUDGEMENT

(1.) THE decree-holders are the petitioners herein. THE decree- holders/plaintiffs filed O. S. No. 190 of 1980 on the file of the District munsif, Srivaikuntam to recover a sum of Rs. 1,275. 50 from the judgment-debtor. E. P. No. 158 of 1987 was filed. In the said petition, the respondent/judgment-debtor pleaded that he was in the Military service from 1953 to 1973 and he took part in the wars and he was inflicted with injuries. He was hospitalised for six months, and therefore he is not in a fit state of health to be detained in the civil prison. THE Execution Court, after considering the evidence, both oral and documentary, came to the conclusion that the judgment-debtor is not in a fit state of health to be detained in the civil prison. THErefore, by applying the provisions of Section 59 of the Code of Civil Procedure, dismissed the execution petition. It is against that order, the present revision has been preferred by the decree holders.

(2.) THE learned counsel appearing for the petitioners herein submitted that the Execution Court was not correct in dismissing the execution petition by applying the provisions of Section 59 C. P. C. According to the learned counsel, Section 59 C. P. C. , would apply only after to warrant is issued. In the present case, no such warrant was issued. It was further submitted that the Execution Court has not considered the means of the judgment- debtor to pay the decree amount. For these reasons, it was submitted that the Execution Court was not correct in dismissing the execution petition.