Madras High Court
G.Arumugham vs M.Ramanathan on 20 August, 2007
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 20/08/2007 Coram The HONOURABLE MR.JUSTICE A.SELVAM C.R.P.NPD.No.596 of 2003 and C.M.P.No.6365 of 2003 G.Arumugham .. Petitioner Vs. M.Ramanathan, Managing Director, Nellai Rasi Chit Funds (P) Ltd., 39, Thanga Maligai, West Car Street, Tirunelveli Town. .. Respondent This appeal has been filed under Section 115 of the Code of Civil Procedure, against the order and decree dated 10.10.2002 made in E.P.No.243 of 2001 in C.C.No.72 of 2000 on the file of the Principal District Munsif Court, Tirunelveli. !For petitioner ... Mr.S.Sundar for Mr.T.R.Rajaraman ^For respondent ... No appearance :ORDER
Challenge in this civil revision petition is to the order dated 10.10.2002 passed in Execution Petition No.243 of 2001 in C.C.No.72 of 2000 by the Principal District Munsif Court, Tirunelveli.
2. The respondent herein as petitioner has filed Execution Petition No.243 of 2001 under Order XXI Rule 37 & 38 of Civil Procedure Code on the file of the Principal District Munsif Court, Tirunelveli praying to arrest the revision petitioner/respondent.
3. It has been contended on the side of the petitioner that the petitioner has instituted the C.C.No.72 of 2000 against the respondent and others before the Joint Registrar of Chit Funds, Tirunelveli and obtained an executable order and since the respondent has failed to discharge the amounts, the present execution petition has been levied against him.
4. It has been contended on the side of the respondent that he has no means to pay the amount mentioned in the execution petition and there is no merit in the petition and the same deserves dismissal.
5. On the basis of rival contentions raised by either party, the Court below has allowed the petition and thereby directed to arrest the respondent. Against the order passed by the Court below, the present Civil Revision petition has been filed, at the instance of the respondent.
6. Even though the respondent has been served with notice, appearance has not been made either through himself or through any counsel and therefore, the present civil revision petition is disposed of on merits on the basis of arguments advanced on the side of the revision petitioner/respondent.
7. The learned counsel appearing for the revision petitioner/respondent has strenuously contended that the respondent/petitioner has not filed any execution petition against the principal debtor and the revision petitioner is only a guarantor and further, the revision petitioner has no means to pay the amount mentioned in the execution petition and without considering the contention urged on the side of the revision revision petitioner/respondent, the Court below has erroneously allowed the execution petition and therefore the order passed by the Court below is liable to be set aside.
8. Before considering the contention urged on the side of the revision petitioner, it has become shunless to look into the provision of Section 51 as well as Order XXI Rule 37 of Code of Civil Procedure. Section 51 of the Code of Civil Procedure reads as follows;
"Powers of Court to enforce execution - Subject to such conditions and limitations as may be prescribed, the Court, may, on the application of the decree holder, order execution of the decree-
(a)by delivery of any property specifically decreed;
(b)by attachment and sale or by sale without attachment of any property;
(c)by arrest and detention in prison for such period not exceeding the period specified in Section 58, where arrest and detention is permissible under that Section;
(d)by appointing a receiver; or
(e)in such other manner as the nature of the relief granted may require:
Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment debtor an opportunity of showing cause why he should not be committed to prison, the Court for reasons recorded in writing, is satisfied-
(a)that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,-
(i)is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii)has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or moved any part of his property, or committed any other act of bad faith in relation to his property, or
(b)that the judgment-debtor has, or has since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or
(c)that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account."
Order XXI Rule 37 of Code of Civil Procedure reads as follows;
"Discretionary power to permit judgment-debtor to show cause against detention in prison.- (1)Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied, by affidavit, or otherwise that, with the object or effect of delaying the execution of the decree, the judgment debtor is likely to abscond or leave the local limits of the jurisdiction of the Court. (2)Where appearance is not made in obedience to the notice, the Court shall, if the decree-holder so requires, issue a warrant for the arrest of the judgment-debtor."
9. From the conjoint reading of Section 51 as well as Order XXI Rule 37 of Code of Civil Procedure, it is pellucid that before making an order of arrest the Court must look into the following aspects;
(a) Judgment-debtor with the object or effect of obstructing or delaying the execution of decree is likely to abscond or leave the local limits of the jurisdiction of the Court;
(b) After institution of the suit in which a decree has been posted, judgment-debtor has dishonestly transferred, concealed, or removed any part of his property; and
(c) Judgment-debtor has or has since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.
10. Only after satisfying the above aspects, the decree holder is entitled to get an order of arrest against the judgment-debtor.
11. With these legal backdrops, the Court has to perpend the present case. It is an admitted fact that the present execution petition has not been levied against the principal debtor and the revision petitioner/respondent is only a guarantor. There is no cleavage of opinion that a guarantor is also jointly or separately liable to pay the debt in question. The specific contention urged on the side of the respondent/petitioner is that the revision petitioner/respondent is having sufficient means to pay the amount mentioned in the execution petition and with oblique motive he has refused to discharge his liability.
12. On the side of the respondent herein one Murugan has been examined as PW1. He has stated in his evidence that the revision petitioner/respondent is doing a jewellery business under the name and style of 'Bavitha Jewellery'. The revision petitioner/respondent has been examined as RW1 he has stated in his evidence that he has not been running the said jewellery shop. Therefore, the entire burden lies upon the respondent/petitioner to prove that the revision petitioner/respondent is having sufficient means to pay the amount mentioned in the execution petition. If really the revision petitioner/respondent has been running a jewellery shop under the name and style of 'Bavitha Jewellery', definitely some documents would have emerged. But, to utter dismay, no document has been filed on the side of the respondent/petitioner so as to prove the above aspect. In fact, this Court has perused the entire order passed by the Court below and found that the Court below has placed the entire burden upon the revision petitioner/respondent. Therefore, the burden of proof placed by the Court below upon the revision petitioner/respondent is totally against law and the same cannot be accepted. It has already been taunted that the respondent/petitioner has not proved the alleged means of the revision petitioner/respondent and on that score alone, the execution petition is liable to be dismissed.
13. The learned counsel appearing for the revision petitioner/respondent has accentuated the Court to look into the following decisions;
(i) The first and foremost decision is reported in 1981 (2) M.L.J. 229 (Anuma Gounder Vs. A.C.Ponnusami) wherein this Court has held that a reference to Section 51 of the Code of Civil Procedure, would show that it is the bounden duty of the execution Court to satisfy itself, that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof.
(ii) The next decision is reported in 100 L.W. 431 (V.Ganesa Nadar Vs. Chellathai Ammal) wherein this Court has held that arrest cannot be sought for a lever to force payment without taking recourse of proceedings for attachment and sale of immovable property.
14. From the close reading of the decisions referred to earlier, it is made clear to the Court that before passing an order of arrest the execution Court must look into the conditions mentioned in Section 51 of Code of Civil Procedure and further it is pellucid that arrest cannot be sought as a lever to force payment without making proceedings for attachment and sale of immovable property.
15. In the instant case, the specific contention of the respondent/petitioner is that the revision petitioner/respondent is running a jewellery shop under the name and style of 'Bavitha Jewellery'. Therefore, a bounden duty is cast upon the respondent/petitioner to levy execution so as to attach and sale the alleged immovable property of the revision petitioner/respondent. But, he has not done it. On that score also, the present execution petition is liable to be thrown out.
16. As adverted to earlier, the Court below has erroneously placed the burden of proof upon the revision petitioner/respondent. The entire burden lies on the decree holder to show that the judgment debtor has the means and capacity to pay the decretal amount and he has been negligence in discharging the decretal amount and mere oral evidence on the part of the decree holder to the effect that the judgment-debtor is having sufficient means to pay the decretal amount is not quantum sufficit and quantum placet, so as to invoke the provisions of Section 51 and Order XXI Rule 37 of the Code of Civil Procedure.
17. Even at the risk of jarring repetition the Court would like to point out that the respondent/petitioner has virtually failed to prove that the revision petitioner/respondent is having sufficient means to pay the amount mentioned in the execution petition and since the respondent/petitioner has failed to discharge his liability, it is needless to say that the order of arrest made by the Court below is totally against law and the same needs interference.
18. In view of the foregoing elucidation of both the factual and legal aspects, this Court has found sufficient force in the argument advanced by the learned counsel appearing for the revision petitioner/respondent and altogether the order in question passed by the Court below is liable to be set aside.
19. In fine, this civil revision petition is allowed without costs. The order dated 10.10.2002 passed in Execution Petition No.243 of 2001 in C.C.No.72 of 2000 is set aside and the execution petition is dismissed. Consequently, connected C.M.P.No.6365 of 2003 is closed.
gcg To.
The Principal District Munsif Court, Tirunelveli.