The revision has been preferred by the judgment-debtor in the suit filed in O.S.No.1135 of 2004 dated 08.08.2008, on the file of the District Munsif Court, Tirunelveli.
2. A decree has been obtained by the respondent herein, for recovery of money against the petitioner. After obtaining a decree, the respondent filed an execution petition in E.P.No.98 of 2007, seeking arrest of the petitioner for non-payment of the amount. A counter affidavit has been filed by the petitioner stating that he has no means to pay the amount. The Court below has allowed the application, by holding that in view of the evidence of the respondent and on the failure of the petitioner to prove that he does not have means to pay the amount, the application is liable to be allowed. Accordingly, the Court below has allowed the application.
3. On a perusal of the order passed by the Court below, it is seen that no enquiry has been conducted to ascertain the means of the petitioner to pay the amount. It is the duty of the decree holder to prove that the judgment-debtor is having sufficient means to pay the amount and the Court below after satisfying the same by conducting the mean enquiry, thereafter, to proceed with the order of arrest. However, in the present case, the trial Court has merely accepted the oral evidence of the respondent and held that since the petitioner has failed to prove that he does not have the means to pay the amount, the order of arrest could be passed. In this connection, it is useful to refer the judgment of the Hon'ble High Court passed in 2000 (2) CTC 168 (M.Muthuswamy Vs. Supasri Chit Funds, Coimbatore and another) wherein, the Hon'ble High Court has held that the execution Court should hold an enquiry and give a specific finding as to the means of the judgment-debtor before ordering of arrest under Rule 37. The execution Court should follow the procedure laid under Rule 39 and 40. Similarly, in the judgment of the Hon'ble High Court reported in 2006 (3) MLJ 759 (K.Vijayan Vs. K.G.Kuppusamy and Others) it was held that the execution Court should satisfy itself that the judgment-debtor has means to pay the decree amount and the order of arrest cannot be passed on mere asking. If the person does not have a means to satisfy the decree, then an order of arrest cannot be ordered. Therefore, it is incumbent on the trial Court to conduct enquiry and satisfy itself about the means of the judgment-debtor to satisfy the decree. In the present case on hand, the trial Court neither conducted enquiry nor gave a finding regarding the means of the petitioner. Hence, the order passed by the Court below in E.P.No.98 of 2007 in O.S.No.1135 of 2004 dated 08.08.2008, on the file of the Principal District Munsif Court, Tirunelveli is hereby, set aside and the said E.P.No.98 of 2007 is remanded to the trial Court. The Principal District Munsif Court, Tirunelveli is directed to conduct an enquiry on the means of the petitioner and pass appropriate orders in accordance with law.
With this direction, the Civil Revision Petition is disposed of. Consequently, connected Miscellaneous Petitions are closed. There shall be no orders as to costs.
DP To The Principal District Munsif, Tirunelveli.