Order of arrest revised by High Court.

ORDER :- It is contended on behalf of the revision petitioner/second defendant- judgment-debtor, referring to the decision in Jolly George Verghese v. Bank of Cochin, AIR 1980 SC 470 at p. 471, which has been followed by this Court in the decision rendered by Balasubrahmanyan, J. in Anuma Gounder v. Ponnusami, (1981) 2 Mad LJ 229) : (AIR 1982 Mad 81) and bearing in mind the observation of the Supreme Court as well as the decision arrived at by this Court, whew the grievance of the revision petitioner is dealt with, certainly it would be seen that the order now impugned is revisable under Sec. 115, C. P. C. It is further contended, that the order pronounced by the lower Court on 25-1-1982 in R. E. P. 195 of 1981 in O. S. 201 of 1981, on the file of the learned District Munsif, Mettur Dam, the petition filed by the respondent herein plaintiff-decree-holder under O.21, Rules 11 and 32 and 38 of the Civil P. C., for arrest of the revision petitioner herein for recovery of Rs. 3,876-40 being the decree amount and costs, is certainly revisable, because, on the day of hearing of the said petition, the revision petitioner herein went late to the Court and the said belated appearance of the revision petitioner herein-before the lower Court was neither wanton nor wilful. In this regard, the learned counsel for the revision petitioner would also point out the following endorsement incorporated in the docket of the petition, R. E. P. 195 of 1981, on 14-10-1981, as well as on 31-10-1981.

(14-10-1981 :- Further proceedings stayed. Application ordered in I. A. 362 of 1981 in A. S. 184 of 1981 of District Court, Salem. Conditional order passed. Stay till 23-10-1981 (on 23-10-1981) the Presiding Officer was on leave and reposted to 31-10-1981).

31-10-1981:- Conditional order passed. R. 2 served. Mr. K.M.N. for respondents. Counter and payment of Rs. 400/- by 5-12-1981."

It is contended by the learned counsel for the revision petitioner that when an appeal has been preferred to the District Court and that the same had been pending and when an order of stay of execution was also obtained, it is not quite in accordance with the law that the learned District Munsif had ordered arrest of the revision petitioner herein by 22-2-1982, observing that there was no counter filed and that no payment was made as per the order of the learned District Munsif dated 31-10-1981, especially when the revision petitioner herein was not present at the time when the petition was called. To substantiate their contention, the learned counsel for the revision petitioner would point out the contents of the counter filed by the revision petitioner on the very same date of the impugned order. It is pointed out by the learned counsel for the revision petitioner that the counter was ready to be filed even on 25-1-1982,viz., the date of adjournment of the petition for counter and it was filed in the office of the learned District Munsif, who had delivered to order for arrest on the very same day. In this view, the order becomes revisable, is the submission made by the learned counsel for the revision petitioner herein.

2. On the other hand, the learned counsel for the respondent herein would vehemently contend that the respondent herein filed R. E. P. 195 of 1981 under O. 21. Rr. 11 and 32 and 38 with the said O. 21 and in this regard when the provisions of O. 21, R. 37, as well as O.21, R. 40, Civil P.C. are gone through, it will be clear that even after arrest, there would be sufficient opportunity to the revision petitioner herein to put forth his case and as such, the impugned order cannot be revised under the provisions of S.115. Civil P. C. The point for consideration is: Whether the order of the learned District Munsif dated 25-1-1982 in R. E. P. No. 195 of 1981 in O. S. 201 of 1981 is revisable under S.115, Civil P. C. ?

3. It admits of no doubt that the revision petitioner herein was not present in court on the date on which the order was pronounced viz., 25-1-1