K.Singathurai v. P.Jayabalan

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30.03.2016

CORAM:

THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P(MD)No.725 of 2016 (PD) and C.M.P(MD)No.3435 of 2016 K.Singathurai .. Petitioner/Petitioner/Plaintiff Vs.

1.P.Jayabalan Now working as Forester, Thondi Division, Forest Life Form Circle, Gulf of Mannar Marine National Park, Ramanathapuram Collector Office, Ramanathapuram District.

2.Forest Wild Life Protector, Ramanathapuram.

.. Respondents/REspondents/Defendants PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the Fair and Decreetal Order, dated 23.03.2016 passed in I.A.No.31 of 2016 in O.S.No.17 of 2016 on the file of Sub Court, Uthamapalayam, Theni District by allowing this Civil Revision Petition.

For Petitioner : Mr.M.Kannan

ORDER

This Civil Revision Petition has been filed to set aside the Fair and Decretal Order, dated 23.03.2016 passed in I.A.No.31 of 2016 in O.S.No.17 of 2016 on the file of Sub Court, Uthamapalayam, Theni District by allowing this Civil Revision Petition. 2.The petitioner is the plaintiff. The first respondent is the defendant in O.S.No.17 of 2016. The petitioner filed the suit for recovery of money based on the promissory note against the first respondent. The petitioner also filed I.A.No.31 of 2016 for attachment of retirement benefits payable to the first respondent by second respondent Garnishee, except which are not covered under the bar of Section 60 of Civil Procedure Code. The first respondent denied the borrowing and execution of the promissory note. The first respondent alleged that the petitioner colluded with one Ravi and created forged promissory note. The criminal

proceedings are pending against the said Ravi on the complaint given by the first respondent. The first respondent has stated that he is ready to participate in the trial and conclusion of trial at earliest. The learned Judge considering the facts and materials on record, dismissed the application filed by the petitioner. Against that order of dismissal, the petitioner has filed the present Civil Revision Petition.

3.The learned counsel for the petitioner contended that the learned Judge failed to see that the amount claimed is based on promissory note and that first respondent is retiring on 31.03.2016. The allegation of the first respondent that he never borrowed the money and executed the promissory note, is not correct. The learned Judge failed to consider the fact that the petitioner seeks attachment only for the various benefits payable by the second respondent to the first respondent, which are not covered under the bar of Section 60 of Civil Procedure Code. The learned Judge failed to consider that unless the benefits payable to the first respondent are attached before judgment, the petitioner cannot realize his debt amount thereafter. The learned Judge failed to consider the fact that the petitioner has sought for attachment of the benefits payable to the first respondent only after deducting the benefits that cannot be attached under section 60 of the Civil Procedure Code.

4.I have heard the learned counsel appearing for the petitioner and also perused the entire materials available on record.

5.The petitioner has filed the suit for recovery of money based on the promissory note. The first respondent has denied the execution of promissory note and alleged that the petitioner in collusion with one Ravi has created a forged promissory note and that criminal proceedings are pending against the said Ravi. These allegations of the first respondent can be proved or disproved only after trial by letting in oral and documentary evidence. 6.In the circumstances, the petitioner is not entitled to attachment of salary payable by the second respondent to the first respondent. There is no illegality or irregularity warranting interference by this Court.

7.In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.

Sd/- Assistant Registrar(T&P) /True copy/ Sub Assistant Registrar

To The Subordinate Judge, Uthamapalayam, Theni District sm:An-MP:29.4.2015:3P/2C C.R.P(MD)No.725 of 2016(PD) 30.03.2016