Kuppusamy Gounder vs Kandasamy Gounder

Pratap Singh, J.—This civil revision petition is directed against the order in E.P. No. 61 of 1985 in O.S. No. 632 of 1974 on the file of

District Munsif, Palani.

Short facts are; The respondent has obtained money decree against the revision petitioner and to realise the decree debt, he had filed E.P. No.

61/85. The revision petitioner resisted the same on two grounds viz., that he had made part payment of Rs. 2,000 and that he was not in a position

to pay the decree debt. After elaborate enquiry, the learned District Munsif had held that the alleged part payment of Rs. 2,000 is false and that the

judgment-debtor has got sufficient means to pay the decree debt but has been neglecting payment and had ordered arrest. Aggrieved by the said

order, the judgment-debtor has come forward with this civil revision petition.

Mr. Prabhu Rajadurai, the learned Counsel appearing for the revision petitioner, would submit that on the evidence available in this case, the

court below ought not have ordered arrest but could have directed the decree holder to proceed against the properties first or at any rate could

have ordered payment in instalments or at least could have given some time for payment before ordering arrest. I have heard Mr. Chakrapani, the

learned Counsel appearing for the respondent, on the above aspects.

I have carefully considered the submissions made by the rival counsels. From the order of the court below, I find that the judgment-debtor has

admitted in cross-examination that he is owning 5 acres of punja lands that there is a well in it and there are two motor pumpsets and is also

owning a house. It was his further admission that he was realising Rs. 10,000 to Rs. 12,000 as income from the said lands. On the above premises,

the court below had come to a conclusion that the judgment-debtor has got sufficient means to pay the decree debt and that the decree was on

25.9.78 but he had not paid any amount towards the decree debt and from the above fact, the court below had concluded that he had neglected to

pay the decree debt. On the fact of the above two findings that the judgment-debtor has got sufficient means to pay the decree debt and that he

had neglected to pay, the court below is correct in ordering arrest.

Mr. Prabhu Rajadurai, would rely upon Ganesa Nadar v. Chellathal Ammal, 100 L.W. 431. In that case, an order of arrest was made by the

court below in execution of decree for money and that was set aside by this Court. But the facts of that case vary totally from the facts of this case.

In that case, the claim of the judgment debtor that he was entitled to the benefits of Tamil Nadu Act 13/80 was negatived. It was held that the

above does not necessarily mean that an order of arrest should follow. Since that would not amount to a finding that the judgment debtor has got

means to pay, this Court had held that order of arrest would not necessarily follow. In that case, the decree holder had given evidence that the

income of the judgment-debtor was Rs. 70,000. She had not afforded any basis for making such a claim that the judgment-debtor was getting an

income of Rs. 70,000 and in view of the above, that finding was not accepted by this Court and this Court held that it was a mere assumption. In

those circumstances, this Court had held that if the judgment-debtor has got properties, it is open to the decree-holder to proceed against the

property. I do not accept the submission made by Mr. Prabhu Rajadurai that the above ruling shall be construed to lay down the proposition that if

the judgment-debtor has got properties, the decree holder is obliged to proceed first against the properties and that he should not proceed with a

prayer for arrest of the judgment-debtor. I am clear that this ruling does not lay down such a proposition.

On the evidence and facts available in this case, the order of the Court below is correct and I do not find any ground whatsoever to interfere

with the same, in exercise of the revisional powers of this Court. Any way, in case, the amount was not paid, the. judgment-debtor is given two

months time from today for payment of the decree debt, failing which the court below shall issue order of warrant of arrest in case, the E.P. is still

pending.

With the above observation, this civil revision petition is dismissed. No costs.