SARMUKH SINGH Vs. ARUN KUMAR

JUDGEMENT

(1.) The present revision petition has been filed under Article 227 of the Contitution of India for setting aside the impugned Order dated 11.01.2017 passed by the Additional Civil Judge (Senior Division), Samrala, whereby, the application filed by the petitioner under Order 21, Rule 37 of CPC has been dismissed.

(2.) Briefly, the facts of the case are that the respondent-decree holder filed an application for execution of decree dated 03.10.2009 against the petitioner/judgment debtor to which the petitioner filed objections. Thereafter, the respondent/decree holder filed an application under Order 21 Rules 37 and 41 read with section 151 of CPC for sending the petitioner/judgment debtor in civil prison till the recovery of decretal amount. The petitioner filed detailed reply to the said application and the respondent also filed rejoinder to reply to the application. Thereafter, another application was also moved by the petitioner for seeking permission to file reply to the plea taken by respondent in the rejoinder. The respondent raised an objection to the application that the same has been moved to delay the execution proceedings. Said application filed by the petitioner was dismissed vide order dated 11.01.2017, which is subject matter of challenge in the present petition.

(3.) Learned counsel for the petitioner submits that the Executing Court has not taken into consideration the fact that the respondent-decree holder has clearly mentioned the new ground regarding the physical capacity of the petitioner to pay the decretal amount. Learned counsel also submits that the petitioner has no movable and immovable property to satisfy the decretal amount. As per provisions of Order 21, Rule 37 of CPC, the proceedings can be initiated only in case, the judgment debtor has sufficient means to pay the decretal amount but he does not pay or does not disclose his means and sources, whereas, in the present case, the respondent himself has admitted that the petitioner has no movable or immovable property in his name and the continuation of execution proceedings would be totally an abuse of process of law.