The Petitioner / Defendant has filed this Civil Revision Petition as against the order dated 21.08.2009 in R.E.A. No.118 of 2009 in R.E.P.No.97 of 2008 in O.S.No.350 of 2006 passed by the Learned District Munsif, Krishnagiri.
2. The Executing Court while passing orders on 21.08.2009 in R.E.A.No.118 of 2009 in R.E.P.No.97 of 2008 in O.S.No.350 of 2006 has interalia observed that 'Counter not filed petition allowed subject to the substantial payment not less than Rs.25,000/- towards the petition amount by 23.09.2009'.
3. The Learned Counsel for the Petitioner / Defendant submits that the order of the Executing Court dated 21.08.2009 in R.E.A.No.118 of 2009 in R.E.P.No.97 of 2008 in O.S.No.350 of 2006 is an erroneous one in the eye of law and the Petitioner being a Junior Assistant cannot pay a sum of Rs.25,000/- in one lumpsum but this aspect of the matter has not been looked into by the Executing Court and as the matter of fact, the Petitioner has never borrowed any amount from the Decree Holder and that the Respondent/Decree Holder has obtained the signature in a pronote without paying any money to the petitioner and thus the petitioner disputes his whole liability and that the Executing Court ought not to have ordered the arrest of the Petitioner and moreover the petitioner has stated in his affidavit that he is willing to pay a sum of Rs.500/- towards part payment in order to raise the warrant of arrest and an ex-parte decree is sought to be executed in the present execution proceedings and these aspects of the matter have not been looked into by the Executing Court in a real prospective and therefore prays for along the Civil Revision Petition in furtherance of substantial cause of justice.
4. Expatiating the submissions, the Learned Counsel for the Petitioner / Defendant contends that the Respondent / Plaintiff has filed the main suit based on a pronote for a recovery of a sum of Rs.61,920/- etc., and that an ex-parte decree has been passed on 07.08.2007 in the suit and that the applications filed under Or.9 Rule 13 of CPC and Section 5 application under the limitation act are pending and in fact the petitioner is a Junior Assistant in a Government Co-operative Society and that the Petitioner will not run away to any place.
5. In response, the Learned Counsel for the Respondent / Decree Holder submits that the pronote is of the year 2003 and the amount decreed comes to Rs.61,920/- etc., and that the Executing Court has directed the petitioner to pay a sum of not less than Rs.25,000/- by 23.09.2009 and since 23.09.2009 happens to be an holiday, the order of dismissal of the R.E.A. No.118 of 2009 has been passed on 30.09.2009 by the Executing Court stating that the conditional order has not been complied with and the order so passed is a fair, just and a valid one in the eye of law and the same need not be interfered by this Court at this stage in Revision Petition.
6. It is to be noted that without properly ascertaining the Judgment Debtor's means to pay an order of arrest is unsustainable in law.
7. A Court of law should give a finding that there exists a reason for arrest.
8. However, one cannot ignore an important fact that if a Judgment Debtor has sufficient means to pay a decree debt and when he deliberately neglects to pay the amount in question then an order of arrest can be made by a competent Court of law in the considered opinion of this Court.
9. It is to be pointed out that 23.09.2009 in R.E.P. No.97 of 2008 the Judgment Debtor has not appeared and no payment has been made and Batta has been directed to be paid in three days and the arrest of the Revision Petitioner / Judgment Debtor has been ordered by the Executing Court by 05.11.2009.
10. Earlier, in R.E.P. No.97 of 2008 the Judgment Debtor has been produced before the Executing Court and a part satisfaction of Rs.1,000/- has been recorded and for further payment the matter has been posted to 20.07.2009 and that the Revision Petitioner / Judgment Debtor has been ordered to be released on muchalika further on 20.07.2009 the Judgment Debtor has absented himself and the order of arrest has been directed to be made by 24.08.2009 and Batta has been directed to be paid in three days. But on 24.08.2009, the execution application No.1180 of 2009 has been pending and hence the matter has been posted to 23.09.2009. On 23.09.2009, since Judgment Debtor has not appeared and no payment has been made, the arrest has been ordered to be effected by 05.11.2009 and the Executing Court further directed that Batta should be paid in three days.
11. It is useful to refer to the averment made by the Revision Petitioner / Defendant in his affidavit in R.E.A. No.118 of 2009, R.E.P. No.97 of 2008 and O.S.No.350 of 2006 to the effect that on that day when arrest has been ordered on 20.07.2009 he has been unwell and therefore he has not been in a position to pay the decree amount and that he tenders a sum of Rs.500/- in part towards the decree amount and therefore as prayed for setting aside the order of arrest dated 20.07.2009.
12. Admittedly, when R.E.A. No.118 of 2009 has been posted for counter and disposal on 21.09.2009 the Respondent / Decree Holder has not filed his counter and that the Petitioner has been allowed subject to the substantial payment of not less than Rs.25,000/- towards the petition amount to be made by 23.09.2009. Since, 23.09.2009 has been declared to be a holiday on 30.09.2009, the Executing Court has dismissed in R.E.A. No.118 of 2009 on account of the fact that the conditional order passed on 21.08.2009 has not been complied with by the Revision Petitioner.
13. One cannot ignore an important fact that the Revision Petitioner / Judgment Debtor has not taken further steps in R.E.P. No.97 of 2008 wherein on 23.09.2009 the arrest of Revision Petitioner / Judgment Debtor has been ordered to be made by 05.11.2009. Since, no payment has been made by the Judgment Debtor and further he has also not appeared before the Executing Court.
14. As far as the present case is concerned the Revision Petitioner / Judgment Debtor in this revision is only questioning the orders of the Executing Court in R.E.A. No.118 of 2009 in R.E.P. No.97 of 2008 whereby and where under the Revision Petitioner has been directed to make a substantial payment of not less than Rs.25,000/- by 23.09.2009 towards the Execution Petition amount. The Executing Court has not rendered any specific finding in R.E.A. No.118 of 2009 by holding an enquiry as to whether the Petitioner / Judgment Debtor has the capacity or means to pay the debt amount and further he has deliberately, neglected or refused to pay the decreetal amount thereby establishing his malafide intention and the same vitiates the order so passed therein, in the considered opinion of this Court. Equally, there is no finding by the Executing Court that the Petitioner / Judgment Debtor likely to abscond order leave the local limits of jurisdiction of the Court. Moreover, before arrest and detention can be ordered, a Court must be satisfied that the Revision Petitioner / Judgment Debtor despite means has willfully evaded the payment detention of a person in a prison without holding an enquiry as per Section 51 of the Civil Procedure Code and Or.21 Rule 40 of CPC are illegal. Also, Or.21 Rule 40 of CPC requires that opportunity should be given to the parties to let in evidence in the case.
15. Inasmuch as the Executing Court has not given any specific finding in R.E.A. No.118 of 2009 in R.E.P. No.97 of 2008 in O.S.No.350 of 2006 as to whether the Petitioner / Judgment Debtor has the capacity or means to pay the debt sum etc., and equally when there is no finding by the Executing Court that the Revision Petitioner / Judgment Debtor is likely to abscond or leave the local limits of jurisdiction of the Court, the order passed by the Executing Court on 21.08.2009 in R.E.A. No.118 of 2009, in directing the petitioner to pay a substantial payment of not less than Rs.25,000/- towards the petition amount by 23.09.2009 suffers from material irregularity and the same is patently illegal in the considered opinion of this Court and therefore the consequential order of dismissal of the petition passed in R.E.A. No.118 of 2009 on 30.09.2009 to the effect that conditional order has not been complied with is also of no avail and therefore this Court exercising its inherent powers set asides both the orders in R.E.A.No.118 of 2009 dated 21.08.2009 and 30.09.2009 respectively in the interest of justice and allows the Civil Revision Petition without costs.
16. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. Consequently, the order passed by the Executing Court in R.E.A. No.118 of 2009 dated 21.08.2009 and 30.09.2009 are set aside to prevent an aberration of justice. Consequently, connected Civil Miscellaneous Petition Nos.1 and 2 of 2009 are closed.
17. Further, the Executing Court is directed to restore R.E.A. No.118 of 2009 to its file and the Executing Court shall dispose of the said execution application, within a period of two weeks from the date of receipt of a copy of this order by even permitting the respective parties to adduce oral and documentary evidence in the manner known to law if they so desire and thereafter to send a compliance report to this Court without fail. It is open to the revision petitioner to challenge the order of arrest dated 23.09.2009 passed in REP No.97 of 2008 by the Executing Court namely viz. District Munsif Court, Krishnagiri before the competent forum in accordance with law if, so advised.
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