R SARAVANAN Vs. E RAJU

JUDGEMENT

(1.) THE petitioner is defendant in O.S.No.277 of 2004 on the file of the District Munsif Court, Bodinayakanur. THE respondent is the plaintiff who obtained money decree in the said suit, levied execution proceedings in E.P.No.44 of 2007 on the file of the above said Court for the recovery of money by arresting and detaining the judgment debtor namely the petitioner herein.

(2.) THE petitioner appeared through Advocate and filed his counter. On 08.03.2007, the executing Court took up the matter for enquiry and examined the judgment debtor. On 26.06.2007, since there was no representation for the respondent (this petitioner), he was called absent, his evidence was closed and the matter was posted for argument on 05.07.2007. On 24.07.2007, arguments were heard. Even though the matter was posted for orders on 09.08.2007, it was Suo motu reopened for clarification. On 13.09.2007, it was reported to the Court that insolvency petition was filed by the judgment debtor on the file of the Sub-Court Periyakulam. On various subsequent hearing dates, copy of insolvency petition was not furnished. THEre was no representation for the judgment debtor on 22.04.2008 and hence he was set ex parte on 03.06.2008. THE Court, after perusing the proof affidavit recorded its findings that the means was proved and ordered arrest by 24.06.2008. On 17.07.2008, he was arrested and produced before the Court at 1.20 p.m. On that date, the judgment debtor paid a sum of Rs.5,000/- towards P.S. (Part satisfaction) and the same was recorded. THE Court released him on security for the payment of entire balance and adjourned the matter to 31.07.2008. On that date, neither he appeared before the Court nor paid the balance amount and was called absent and order for arrest was passed to arrest him by 08.08.2008. Since he was out of station, a fresh order of arrest was passed on 08.08.2008 to arrest him by 04.09.2008. THE respondent filed an application for steps seeking police help and the same was also ordered by the Court. Arrest was to be made by 29.09.2008. THEreafter, on payment of cash batta, arrest was to be effected by 24.10.2008.

(3.) ONLY if the judgment debtor obtained an interim protection order under Section 31 of the Provincial Insolvency Act, release from the arrest could be considered by the executing Court. He is not protected from arrest by the mere fact of his having applied in insolvency.