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Madras High CourtCRP/2997/2012dismissed

P.Kandhasamy v. K.C.Annamalai

2017-07-07Honourable Ms.Justice V.M.Velumani6 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.07.2017

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI CRP PD NOS.2997 & 2998 OF 2012 AND MP NOS.1 & 1 OF 2012 1.P.Kandhasamy 2.P.Sivakumar ... Petitioners in both CRPs Vs K.C.Annamalai ... Respondents in both CRPs Common Prayer : Civil Revision Petition filed under Section 115 of Civil Procedure Code against the order passed in E.P.Nos.33 & 34 of 2010 in O.S.Nos.67 & 76 of 2009 dated 10.01.2012 on the file of Sub Court, Vaniyambadi, Vellore District.

For Petitioner : Mr.M.Balachandran in both CRPs For Respondent in both CRPs : Mr.S.Thangavel COMMON ORDER The parties and the issues in both the Civil Revision Petitions are one and the same and therefore this common order is passed.

2. The respondent is the plaintiff and the petitioners are defendants in O.S.Nos.81 & 101 of 2005 (originally filed before Sub Court, Tirupattur) and subsequently transferred to Sub Court, Vaniyambadi and renumbered as O.S.Nos.67 & 76 of 2009, respectively for recovery of money based on promissory notes. Both the suits were decreed in favour of the respondent on 18.02.2010. The respondent filed E.P.Nos.33 & 34 of 2010 for arrest and detention of the petitioners in Civil Prison for realisation of the decree amount in their favour. According to the respondent, the petitioners are doing milk vending and seasonal business and earning a sum of Rs.20,000/- per month. The petitioners are also owning properties worth Rs.50 lakhs and they have sufficient means to pay the decreetal amount in one lumpsum.

3. The petitioners filed counter and submitted that they have repaid the amounts borrowed from the respondent on various dates. The respondent, without giving credit to the amounts repaid by the petitioners, have filed the suit for recovery of money and they have no means to repay the amount and prayed for dismissal of the execution petitions.

4. The petitioners have examined two witnesses and marked three sale deeds as Exs.R1 to R3 and deposed that he sold the properties before passing of the decree and settled the amount due to the creditors. Now they are working as daily wage employees. The respondent examined himself as PW1 and one Barathi was examined as PW2. and marked Exs.P1 & P2. The learned Judge, considering the materials on record, both oral and documentary and evidence let in by the parties, accepted the contention of the learned counsel for the respondent that alleged sale deeds under Exs.R1 to R3 are sham and nominal and revenue records are still in the name of the petitioners and others and not in the name of the purchasers. In view of such finding, the learned Judge directed the petitioners to pay a sum of Rs.4,69,105.50 and Rs.4,65,705.50 respectively, on or before 10.02.2012 failing which ordered arrest of the petitioners.

5. Against the order made in E.P.Nos.33 & 34 of 2010 in O.S.Nos.67 & 76 of 2009 dated 10.01.2012, the present Civil Revision Petitions are filed.

6. Heard the learned counsel for the petitioner, respondent and perused the materials available on record.

7. From the materials available on record, it is seen that the petitioners have not filed any proof to show that the petitioners have paid the amounts to the respondent on various dates. The contention of the petitioners are that they sold all the immovable properties before passing of the decree and paid the amounts to the creditors and discharged the loan amounts and they have paid various amounts on different dates to the respondent and discharged the loan. To substantiate this contention, the petitioners have not let in any acceptable evidence. They have produced Exs.R1 to R3 - sale deeds and contended that they have sold the properties. On the other hand, Exs.P1 & P2 relied on and marked by the respondent that patta, chitta and adangal stands in the name of the petitioners and others are not in the name of the subsequent purchasers.

8. The learned Judge, considering all the above facts, accepted the contention of the learned counsel for the respondent that petitioners have means to pay the amounts, that sale deeds

are sham and nominal and that petitioners have means to pay the amount and possess immovable properties, allowed the Execution Petition directing the petitioners to pay the amounts on or before 10.02.2012, failing which ordered arrest.

9. It is pertinent to note that this Court, at the time of admission ordered interim stay on condition that the petitioners shall pay a sum of Rs.2,00,000/- each to the respondent, within a period of three weeks from the date of receipt of the copy of the order, failing which the interim stay shall stand automatically vacated. Even after the interim order passed by this Court, the petitioners have not paid any amount to the respondent.

10. In the above circumstances, the Civil Revision Petitions are devoid of merits and liable to be dismissed. Accordingly, the Civil Revision Petitions are dismissed. No costs. Consequently, connected Miscellaneous Petition are closed.

07.07.2017 rgr Index : Yes/No

V.M.VELUMANI, J.

rgr To The Subordinate Judge, Vaniyambadi, Vellore District.

CRP PD NOS.2997 & 2998 OF 2012 07-07-2017