M.Ragupathi v. R.Selvaraj

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.11.2021

CORAM:

THE HONOURABLE MS.JUSTICE P.T.ASHA M.Ragupathi .. Petitioner -vsR.Selvaraj .. Respondent Prayer :- Petition filed under Section 115 of Civil Procedure Code against the fair and decretal order passed by the learned District Munsif, Thuraiyur in E.P.No.48 of 2017 in O.S.No.315 of 2004 dated 13.02.2018.

For Petitioner :

Mr.N.Kamesh For Respondent :

Mr.V.S.Rishikesh, Legal Aid Counsel ******

ORDER

The decree holder, whose execution proceedings has been dismissed, has filed this Revision.

2.The revision petitioner/plaintiff had filed a suit in O.S.No.315 of 2004 against the respondent/defendant for recovery of a sum of Rs.50,200/- together with subsequent interest @ 18% per annum from the date of suit till the date of payment. 3.The petitioner would submit that on 12.05.2002, the respondent had borrowed a sum of Rs.40,000/- to meet his urgent expenses and had executed a demand promissory note in favour of the petitioner. However, contrary to the assurance, the respondent had not paid the money.

4.The petitioner would state that despite the fact that the respondent is working as a Clerk in the Lakshmi Vilas Bank Ltd., Erode and is drawing a monthly salary of Rs.8,500/-, he has not repaid the money thereby, constraining the petitioner to file the

above suit.

5.The respondent remained ex-parte and an ex-parte decree came to be passed on 31.08.2005. The petitioner, thereafter, sought to execute the said decree by filing a petition in E.P.No.48 of 2017 seeking the arrest of the respondent. The petitioner had also adduced the means evidence in support of his case. In the affidavit filed in support of the execution proceedings, the petitioner would submit that the respondent was possessed of several movable and immovable properties and that he was earning a monthly salary of Rs.20,000/-. Therefore, he was a man of means, who has deliberately refusing to repay the loan amount.

6.The learned District Munsif, Thuraiyur, however, proceeded to dismiss the said petition on the ground that the petitioner had failed to establish the fact that the respondent was possessed of sufficient means despite which, he was not coming forward to clear the dues. Challenging this order, the petitioner is before this Court.

7.The learned counsel appearing on behalf of the petitioner would submit that the respondent was employed with the Lakshmi Vilas Bank as a Clerk and earning a monthly salary, though at present he has retired from service. He would submit that the learned District Munsif, Thuraiyur has overlooked the above fact. He would rely upon the judgment of the High Court of Andhra Pradesh at Amaravati in Rajeti Prabhakara Rao vs. Mosa Satyavathi & Ors. reported in AIR 2019 AP 55 and would draw the attention of this Court to paragraphs 12 and 13 in support of his arguments.

8.Heard the learned counsels for the parties. 9.The petitioner has obtained an ex-parte decree for recovery of money on 31.08.2005. Admittedly, the decree has not been challenged by the respondent herein. Although the plaintiff has obtained a decree as early as in the year 2005, the plaintiff has filed the execution petition only on 21.08.2017, 10 days short of 12 years. The execution proceedings have been filed to arrest the respondent/judgment debtor in the event of his not paying the decree amount. The petitioner has filed an affidavit in lieu of his means evidence, but however, the contents of the statements made thereunder are not proved by any documentary evidence.

The petitioner, who claims that the respondent was employed with the Lakshmi Vilas Bank and that he was possessed of sufficient movable and immovable property, had not produced any evidence to substantiate the same. Admittedly, the means evidence has been taken in the absence of the respondent/judgment debtor. The judgment relied on by the petitioner would only enure against him.

"14.In the light of the above findings and presidential jurimetrics when the facts of the case on hand are perused, in the instant case also after attending Court for some time, J.Drs. 3 and 4 remained absent and the execution Court set them ex parte and posted matter for evidence of decree holder to prove the means of judgment debtors. It must be said that the execution Court was totally oblivious of the procedure contemplated under Order XXI Rule 40 CPC which ordains that the means enquiry must be held in the presence of the judgment debtor. It appears in spite of the decree holder requesting the Court to issue arrest warrant in terms of Rule 37(2) CPC the Court below instead of issuing warrant held decree holder failed to establish the means of the judgment debtors and ultimately dismissed the E.P.

which is totally an erroneous order bereft of legal mandate." 10.The facts therein are different from the facts of the instant case, since in the instant case, the judgment debtor has remained ex-parte throughout the proceedings whereas, in the judgment cited above, the judgment debtor had attended the proceedings for some time. Further, the petitioner/decree holder has not been able to substantiate his contention that the respondent, despite having sufficient income, had deliberately failed to repay the amount thereby, warranting arrest. The learned District Munsif, Thuraiyur has rightly considered the evidence on record and dismissed the said petition, which requires no rethinking by this Court. Hence, the Civil Revision Petition stands dismissed. No costs.

Sd/- Assistant Registrar (CS-III) // True Copy // / /2021 Sub Assistant Registrar(CS) abr Note:- In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the Advocate / litigant concerned.

To The District Munsif, Thuraiyur.

+1 CC to M/s.V.S. RISHIKESH, Advocate ( SR-34525[F] dated 15/11/2021 ) 12.11.2021 RD(30.11.2021) 4P 3C