N. Murali vs Indian Overseas Bank

R. Karuppiah, J.—This revision petition is filed against the order made in E.P. No. 82 of 2006 in L.C. No. 1167 of 2005 on the file of the Subordinate Court, Gudiyattam dated 29.06.2009. Heard Mr. K.A. Ravindran, learned counsel for the petitioner. Despite service of notice, there is no appearance for the respondent.

The revision petitioner who is the judgment debtor filed this revision petition against the order passed in E.P. No. 82 of 2006 in L.C. No. 1167 of 2005 on the file of the Subordinate Court, Gudiyatham dated 29.06.2009. The respondent filed E.P. No. 82 of 2006 in L.C. No. 1167 of 2005 to issue notice to respondent to realise the decree amount and in default issue arrest warrant and commit the respondent to civil prison. In the above said execution petition, the revision petitioner/judgment debtor filed a detailed counter by stating that due to heavy drought in his village he has migrated to Bangalore and doing coolie work and sustaining his livelihood therein and hence, he has no means to pay the decree amount and therefore, the execution petition for arrest is not maintainable and further the amount claimed in the execution petition is excessive and therefore, prayed to dismiss the execution petition.

The Executing Court namely, Subordinate Court, Gudiyatam passed the following order;

"Petition filed u/o.21 R 37 & 38 C.P.C., to arrest the J.D and send him to civil prison to realise the decree amount.

Arrest ordered pay arrest batta in 3 days. Arrest by 24.07.2009."

The learned counsel would submit that the executing court has not discussed the contentions of both sides and also not given any finding as to the means of the judgment debtor as per Order 21 Rule 32 CPC, and the executing court has passed a non-speaking order and therefore, prayed for setting aside the above said order. The learned counsel appearing for the revision petitioner has relied upon a decision reported in Jolly George Varghese and Another Vs. The Bank of Cochin, in which in paragraph 11 it is stated as follows;

"The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate of recusant disposition in the past or alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decree. Here considerations of the debtor''s other pressing needs and straitened circumstances will pay prominently. We would have by this construction, sauced law with justice, harmonised Section 51 with the Covenant and the Constitution."

In the instant case the revision petitioner has specifically stated in the counter as he has no means to pay the decree amount and further stated that the amount claimed by the respondent is excessive. The Executing Court has not at all discussed about the means to pay the decree amount and also not discussed about the correctness of the claims of the respondent and without any discussion the executing court has passed the order of arrest. Further the respondent also not appear in person or counsel to contest the revision petition. Therefore, the order passed by the executing court is illegal and it is liable to be set aside as rightly contended by the learned counsel for the revision petitioner. In the result the revision petition is allowed and the order passed in E.P. No. 82 of 2006 in L.C. No. 1167 of 2005 on the file of the Sub-ordinate Judge, Gudiyattam, Vellore District dated 29.06.2009 is set aside. No order as to costs. Connected miscellaneous petition is closed.