N C DURAISAMY NAIDU Vs. K PAPPAIYA NAIDU

JUDGEMENT

(1.) THE present revision has been filed by the judgment-debtor questioning the order passed in E. P. No. 35/2005 in O. S. No. 317/1999 by the learned Subordinate Judge, Gudiyattam, Vellore District dated 10. 4. 2006.

(2.) THE respondent/decree holder has filed a Suit against the petitioner/judgment-debtor in O. S. No. 317/99 and obtained money decree. To execute the same, the respondent herein has filed E. P. No. 35 of 2005 under Order 21, Rule 37, C. P. C. Counter has been filed by the petitioner herein repudiating the contentions raised in the Execution Petition. THE learned Trial Judge after considering the matter in issue has held that arrest cannot be ordered against the petitioner/judgment debtor as he has possessed property. However, the learned Trial Judge directed the petitioner/judgment-debtor to pay the decree amount in installment at Rs. 5,000/- per month failing which arrest will be ordered. Challenging the said order the present Revision has been filed.

(3.) I have heard the learned counsel appearing for the petitioner as well as respondent. As rightly pointed out by the learned counsel for the petitioner, the learned Subordinate Judge, Gudiyattam has not given any finding with regard to the means of the petitioner/judgment debtor. Further, there is no further finding that in spite of means, the petitioner/judgment-debtor wilfully has not paid the decreed mount. Hence, the matter is remanded to the Trial Court for deciding the question whether the petitioner/judgment-debtor has got means to pay the decreed in the Suit. Since the Suit is of the year 1999 and the execution has been levied in the year 2005, I hereby direct the learned Subordinate Judge, Gudiyattam to take up E. P. No. 35/2005 on his file and after affording opportunity to the petitioner as well as respondent shall pass orders as expeditiously as possible.