S. Parthiban vs The Punjab National Bank

R. Karuppiah, J.—This revision petition is filed against the order passed in E.P. No. 82 of 2007 in O.S. No. 218 of 2002 dated 07.11.2008 on the file of the Subordinate Court at Pollachi. Heard Mr. D. Krishnakumar, learned counsel for the petitioner. Respondents 2 and 3 were given up and there is no appearance for the 1st respondent.

The first respondent/decree holder/plaintiff filed E.P. No. 82 of 2007 to execute the decree passed by the trial court on 07.03.2003 and for a direction to deposit a sum of Rs. 73,355/- and also Rs. 7,681/- as cost and if not paid the above said amount, prayed to arrest the respondents 1 to 3 and send to jail.

The revision petitioner/first respondent in the above said execution petition filed a detailed counter in which he stated that the decree amount has to be paid by all the 3 respondents equally and further the calculation of interest and costs is not correct. It is also averred in the counter that the revision petitioner/first respondent has no means to pay the decree amount. Further in the counter it is stated that since the revision petitioner/first respondent is leaving at Udumalai Taluk, the executing court has no jurisdiction to pass the order of arrest of the first respondent and on that ground also the execution proceedings against the revision petitioner is not maintainable.

The executing court has passed an order on 07.11.2008 which is as follows;

This petition has been filed for arresting the respondent and to lodge him in a civil prison for realizing the EP amount.

The respondent has filed counter stating that the respondent has no means the amount and interest calculated is not correct. The petitioner filed means affidavit to show that the respondents have means to pay the amount. Hence, arrest the respondents on payment of subsistence allowance by 01.12.2008.

The learned counsel appearing for the revision petitioner submitted that the executing court has not at all considered the objections raised by the revision petitioner and only on relying on the facts set with affidavit by the first respondent/decree holder, the above said order was passed and therefore, the above said order is absolutely illegal and the above said finding is perverse and illegal.

Admittedly the first respondent herein/decree holder filed the execution petition as against three respondents. The revision petitioner/first respondent alone filed objection in the above said execution petitioner. A perusal of the Executing court order revealed that the executing court has passed an order of arrest only to one respondent and not stated anything about the other respondents/judgment debtors. Further the executing court has not at all considered the main contention of the revision petitioner/first respondent that the revision petitioner/first respondent is living at Udumalai, which is not within the jurisdiction of the Execution Court. Further the executing court has not at all stated what are the properties to give income or details of any other income to the revision petitioner/first respondent so as to pay the decree amount on the date of execution of the decree. The executing court has not at all stated what are the particulars given about the means of the first respondent stated in the proof affidavit. Therefore, the order passed by the executing court is absolutely non-application of mind and also not properly considered all the objections raised by the revision petitioner. Therefore, the order passed in E.P. No. 82 of 2007 in O.S. No. 218 of 2002 dated 07.11.2008 on the file of the Subordinate Court Pollachi has to be set aside and the revision petition is to be allowed and remitted back to the same court to give and opportunity to both sides and pass appropriate order after-considering all the objections raised by the " revision petitioner. In the result the revision petition is allowed and order passed in E.P. No. 82 of 2007 in O.S. No. 218 of 2002 dated 07.11.2008 is set aside and the execution petition is remitted back to the same court to decide afresh after giving opportunity to both sides. No order as to costs. Connected miscellaneous petition is closed.