R PRUMAL REDDIYAR Vs. R SAKTHIVEL

JUDGEMENT

(1.) THIS revision has been preferred against the order passed in E. P. No. 35 of 2006 in O. S. No. 72 of 2003 by the judgment Debtor. E. P. No. 35 of 2006 was filed under Order 21 rule 37 of CPC. According to the Decree Holder/petitioner in EP, the respondent had borrowed a sum of Rs. 1,50,000/-from the plaintiff, but failed to repay the same. Hence, he filed the suit O. S. No. 72 of 2003 before the Subordinate judge, Bhavani, who had decreed the suit. To execute the decree, the Decree Holder has filed EP. 35 of 2006 under order 21 Rule 37 of CPC r/w Section 51 and 55 of CPC. The respondent/judgment Debtor in his counter has stated that he has taken steps to set aside the exparte decree and that he has no means to pay the decree amount. Before the executing court, the Decree Holder had filed Ex. P. 1-patta and Ex. P. 2-copy of the statement register dated 19. 6. 2007 to show that the Judgment Debtor is having immovable property in his name in S. No. 61/2a and that the patta stands in the name of the judgment Debtor and six others. To controvert this evidence, there was no evidence produced by the Judgment debtor. Only under such circumstances, the learned trial judge has allowed the EP and order for arrest of the judgment Debtor.

(2.) THE learned counsel for the revision petitioner relying on 100 LW 431 (V. Ganesa Nadar Vs. K. Chellathai ammal), contended that arrest cannot be sought as a lever to force payment without taking recourse to proceedings for attachment and sale of immovable property. The fact in the above said dictum is that the Judgment Debtor in that case had claimed benefits under Tamil Nadu Act 13/1980 and was paying the decree amount in installments and on the failure to pay one installment executing Court ordered arrest and apart from the ipsi-dixit of the Decree Holder, there is no other evidence let in to show that the Judgment Debtor had an income of Rs. 70,000/- pm. Only if there is refusal or negligent on the part of the Judgment Debtor in paying the decree amount, will envisage the Decree Holder to file an application under Order 21 Rule 38 r/w 51 (c) of CPC. In the case on hand, the defence taken by the Judgment Debtor is that he has no means, which was disproved by the Decree holder by adducing oral and documentary evidence before the executing Court. The conditional order imposed by this Court in M. P. No. 1 of 2007 in CRP. (NPD ). No. 2738 of 2007 on 7. 9. 2007 has not been complied with by the revision petitioner. Under such circumstance, I am of the considered view that it cannot be said that the order of the executing Court in ep. No. 35 of 2006 in O. S. no. 72 of 2003 on the file of the court of Subordinate Judge, Bhavani, is illegal or infirm to warrant any interference from this Court.

(3.) IN the result, the revision is dismissed confirming the order in E. P. No. 35 of 2006 in O. S. No. 72 of 2003 on the file of the Sub-Court, Bhavani. Judgment Debtor is given a months time to repay the decree amount. Connected miscellaneous petition is also dismissed.