A.S. Venkatesan vs Velayutham

Aruna Jagadeesan, J.—This Civil Revision Petition is filed against the order of the learned Subordinate Judge, Uthamapalayam, Theni

District dated 13.11.2008 made in EP. No. 35/2007 ordering arrest of the Petitioner.

A decree for money for a sum of Rs. 1,62,575/- has been passed against the Petitioner and the same was sought to be executed by the

Respondent by his arrest and detention in civil prison in EP. No. 35/2007 under Order 21 Rule 38 of Code of Civil Procedure. On a notice having

been sent to the Petitioner, he filed an objection to the effect that he had no means in his possession and denied the allegation made by the

Respondent that he possessed land and a house property in Kallakuruchi and also a cash of Rs. 5,00,000/- in hand which he is utilising for money

lending business.

The learned Subordinate Judge, Uthamapalayam on the evidence on record has found that the house in which the Petitioner is in occupation

should be presumed to be his own house in the absence of any evidence adduced on behalf of the Petitioner as to who is the owner of the house

and what is the rent paid by the Petitioner if it is a rented house. The learned Subordinate Judge has found that in such circumstances the Petitioner

would be deemed to have sufficient means and ordered arrest of the Petitioner.

It has been urged on behalf of the Petitioner that the finding rendered by the court below presuming that the Petitioner who was in a position to

give the four boundaries of the house in which he is residing will be deemed to have been in possession of the said house as owner, thereby

throwing the onus on the Petitioner/Judgment debtor is perverse and the same is vitiated. He would rely upon the decision of this Court rendered in

the case of Ganesh v. Sankaran and Anr. 2006 (3) CTC 546 contending that the executing court has not given a finding as to the correct means of

the judgment debtor to discharge the decree before ordering arrest under Rule 38 of Order 21 of Code of Civil Procedure. He would contend that

the executing court did not observe the principles laid down by the Honourable Supreme Court in the cases of Mr. Tharmapitchai and Another Vs.

A.C.A. Funds, and Jolly George Varghese v. Bank of Cohin AIR 1980 SCC 470 : (1980) 93 L.W. 7.

On the other hand, it is urged by the Respondent that the finding of the executing court cannot be said to be perverse inasmuch as on the facts

established a presumption of fact naturally followed that the Petitioner possessed sufficient means and a finding based on such a presumption

cannot be vitiated.

Admittedly the Respondent has not given any particulars regarding the land and house property allegedly owned by the Petitioner. The only

statement made by the Respondent that the judgment debtor has got lands and a house and also possessed of cash of Rs. 5,00,000/- which is

given on rotation for money lending business is without any basis. It is for the decree holder to prove by evidence on record that the judgment

debtor actually possessed lands and a house and he would not succeed merely by giving vague statements without giving any details of such assets

owned by the Petitioner.

u/s 51(b) of Code of Civil Procedure, the decree holder has to satisfy the court that the judgment debtor has or has had since the date of the

decree the means to pay the amount of the decree or some substantial part thereof. In the instant case, there is nothing on record to show that the

judgment debtor concealed any assets. There could be no such natural presumption as urged by the Respondent that merely because a person is

able to give the four boundaries of the house in which he is residing, it would lead to a presumption that it is his own house.

The arrest and detaining a person in prison for non payment of money is an extraordinary step and the method of execution by way of arrest

should be resort to by the court only-when it is satisfied on cogent evidence that the judgment debtor has or has had since the date of the decree

the means to pay the amount of decree.

The word ""means"" occurring in Section 51 of CPC can only mean realisable assets viz. sufficient assets from out of which the necessary monies

can be realized to pay to decree amount. Even assuming that the Petitioner was residing in his own house, the mere occupation of a house as his

residence cannot be taken as a decisive factor to conclude that he possessed means to pay.

In the instant case, the Respondent has not proved the circumstances from which a factual inference could be drawn that the

Petitioner/judgment debtor had sufficient means but in spite of it he deliberately failed to pay the decree amount.

It is unfortunate that the executing court drew inference against the judgment debtor by completely omitting from consideration the

circumstances which emerged out from the evidence on record to come to a conclusion that the Petitioner/Judgment debtor has possessed means.

A court must always be hesitant to send a judgment debtor to prison unless it is found that the judgment debtor had been always dishonest,

contumacious and deliberate in his conduct in avoiding the decree passed against him. In the instant case, I do not find any such evidence on

record.

As a result of the discussions made above, I set aside the impugned order passed by the executing court and in the result, this Civil Revision

Petition stands allowed. No costs. Consequently, the connected MP is closed.