KESAMUTHU Vs. ANBALAGAN

JUDGEMENT

(1.) HEARD the learned counsel appearing for revision petitioner. There is no representation for the respondent inspite of service of notice.

(2.) THIS revision petition has been directed against the order passed in E.P.No.167 of 2006 in O.S.No,934 of 2004 on the file of the Court of District Munsif, Kallakurichi. The grievance of the learned counsel for the revision petitioner is that in the absence of any material to show that the Judgment Debtor has sufficient means to pay the decree amount, the petition for arrest was ordered by the learned trial Judge. According to the Judgment Debtor, the net take home salary of the Judgment Debtor was only Rs.40/- per month and his wife is engaged in Coolie work and he has no means to pay the decree amount. The Judgment Debtor had filed Ex R1 pay certificate to show that his take home salary was Rs.40/- only, but the learned Execution Court had rejected Ex R1 as not admissible. The burden is heavily on the decree holder to rebut the evidence of the Judgment Debtor. There is no rebuttal evidence let in by the decree holder to show that apart from take home salary of Rs.40/- per month under Ex R1, the Judgment Debtor is having sufficient means to pay the decree amount. Under such circumstances, the petition under Order 21 Rules 37 and 38 CPC is not maintainable. It is up to the decree holder to resort to other remedies available under law like attachment of salary etc., to proceed against the Judgment Debtor in executing the decree.