ORDER: This civil revision petition is directed against the fair and decretal order dated 6.9.2001 made in E.P. No.53 of 2000 in O.S. No.340 of 1995 by the Court of District Munsif, Dharmapuri thereby allowing the application filed by the plaintiff under O.21, Rules 22, 37 and 38 seeking arrest and detention in the civil prison of the petitioner herein.

2. Tracing the history of the case, it comes to be known that the respondent herein who is the plaintiff is the decree-holder in the suit in O.S. No.340 of 1995 wherein the decree amount is Rs.18,204; that the revision petitioner has got property worth Rs.75,000 which is fetching income of Rs.2,000 per year; that he is receiving a salary of Rs.7,000 per month and in spite of having the capacity to pay the decree amount, he has failed to do the same and hence praying for arrest and detention in civil prison.

3. In the counter filed before the lower Court the revision petitioner/ respondent denied the allegations of the petition that he has got properties valued at Rs.75,000 and on that annual income is Rs.2,000 having monthly income of Rs.7,000 and inspite of having such income he is not paying the decree amount. He would further allege that only to harass him the plaintiff has filed the petition without proceeding to attach the salary of the petitioner; that too for giving him problems in his Government job he has wilfully come forward to arrest the petitioner which is contrary to law and hence would pray to dismiss the petition with costs. To set aside the decree, the revision petitioner making all efforts.

4. The Court below having framed proper points for consideration and determination and having its own discussions found that the revision petitioner/ respondent is working as a Assistant in the local telephone department drawing a monthly salary for Rs.7,000 besides having his own house. Therefore, in spite of having all the facilities to repay the decree amount, since the revision petitioner is not willing to do the same, there is nothing wrong in initiating the arrest proceedings against him and thus allowed the application.

5. During arguments, learned counsel for the revision petitioner has submitted the respondent had filed an application for arresting only with a view to harass the revision petitioner; that the petitioner has already paid part of the decree amount; that the lower Court failed to see that the petitioner had not wilfully defaulted in payment of the decree amount, that without exhausting other ways and means or recovering the decree amount, the respondent/ decree-holder has all of a sudden jumped to cause the arrest of the petitioner which is erroneous. The lower Court also has erred in not only holding that the petitioner a salary per month is Rs.7,000 but also in giving finding that he is owning a house; that the learned District Munsif also erred in simply accepting the case of the respondent without any offence to conclude in the manner it has concluded.

6. At this juncture, the learned counsel for the revision petitioner also cited, the following judgments in support of his case.

7. In a decision reported in Iyyam Perumal v. Chinna Gounder, (1984)1 M.L.J. 195, the learned single Judge of this Court has revised the order of arrest wherein an ex parte order of arrest was made.

8. In another decision reported in Thavasiappa Gounder v. A.C.Narayanaswamy, (1986)2 M.L.J. 300, the learned single Judge of this Court has held that:

“.....execution by the 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 about the circumstances specified in the proviso........”

9. In a decision reported in V.Ganesa Nadar v. K.Chellathai Ammal, (1987)2 M.L.J. 25, the single Judge of this Court has held that:

“.....Merely because judgment-debtor possesses immovable property, an order for detention in civil prison cannot be made

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