Back
2009 Supreme(Mad) 4139
Madurai Bench of Madras High Court
THE HONOURABLE MRS. JUSTICE ARUNA JAGADEESAN
A.S. Venkatesan
Versus
Velayutham
CRP(PD)No.27 of 2009 Mp.No.1 of 2009
Decided on : 09-10-2009
For the Petitioner:T. Lenin Kumar, Advocate. For the Respondent: ---
The occupation of a house as a residence is not a decisive factor to presume means to pay a money decree. Realizable assets and evidence of deliberate non-payment are necessary for resorting to arrest for non-payment of a decree.
Headnote:
Arrest - Execution of Decree - Presumption of means to pay - Realizable assets - Occupation of house as residence not decisive factor
Fact of the Case:
The petitioner filed an objection to his arrest and detention in civil prison for non-payment of a money decree, denying the possession of sufficient means. The executing court ordered his arrest based on the presumption that the house he occupied was his own, indicating sufficient means.
Finding of the Court:
The court found that the executing court's presumption of the petitioner's means based on house occupation was erroneous and lacked cogent evidence. It emphasized the need for realizable assets and evidence of deliberate non-payment before resorting to arrest for non-payment of a decree.
Issues: Presumption of means to pay based on house occupation, sufficiency of evidence for arrest, and the necessity of realizable assets for execution.
Ratio Decidendi: The court emphasized that the mere occupation of a house as a residence cannot be the decisive factor to conclude that the petitioner possessed means to pay. It highlighted the need for realizable assets and evidence of deliberate non-payment before resorting to arrest for non-payment of a decree.
Final Decision: The impugned order for arrest was set aside, and the Civil Revision Petition was allowed with no costs.
This Civil Revision Petition is filed against the order of the learned Subordinate Judge, Uthamapalayam, Theni District dated 111. 2008 made in EP.No.35/2007 ordering arrest of the petitioner.
2. A decree for money for a sum of Rs.1,62,575/- has been passed against the petitioner and the same was sought to be executed by the respondent by his arrest and detention in civil prison in EP.No.35/2007 under Order 21 Rule 38 of CPC. On a notice having been sent to the petitioner, he filed an objection to the effect that he had no means in his possession and denied the allegation made by the respondent that he possessed land and a house property in Kallakuruchi and also a cash of Rs.5,00,000/- in hand which he is utilising for money lending business.
3. The learned Subordinate Judge, Uthamapalayam on the evidence on record has found that the house in which the petitioner is in occupation should be presumed to be his own house in the absence of any evidence adduced on behalf of the petitioner as to who is the owner of the house and what is the rent paid by the petitioner if it is a rented house. The learned Subordinate Judge has found that in such circumstances the petitioner would be deemed to have sufficient means and ordered arrest of the petitioner.
4. It has been urged on behalf of the petitioner that the finding rendered by the court below presuming that the petitioner who was in a position to give the four boundaries of the house in which he is residing will be deemed to have been in possession of the said house as owner, thereby throwing the onus on the petitioner/ judgment debtor is perverse and the same is vitiated. He would rely upon the decision of this court rendered in the case of Ganesh Vs. Sankaran and another [2006-3-CTC-546] contending that the executing court has not given a finding as to the correct means of the judgment debtor to discharge the decree before ordering arrest under Rule 38 of Order 21 of CPC. He would contend that the executing court did not observe the principles laid down by the Honourable Supreme Court in the cases of Tharmapitchai Vs. ACA.Funds, Tirunelveli [1995-2-CTC-20] and Jolly George Varghese Vs. Bank of Cohin [AIR-1980-SCC-470].
5. On the other hand, it is urged by the respondent that the finding of the executing court cannot be said to be perverse inasmuch as on the facts established a presumption of fact naturally followed that the petitioner possessed sufficient means and a finding based on such a presumption cannot be vitiated.
6. Admittedly the respondent has not given any particulars regarding the land and house property allegedly owned by the petitioner. The only statement made by the respondent that the judgment debtor has got lands and a house and also possessed of cash of Rs.5, 00,000/- which is given on rotation for money lending business is without any basis. It is for the decree holder to prove by evidence on record that the judgment debtor actually possessed lands and a house and he would not succeed merely by giving vague statements without giving any details of such assets owned by the petitioner.
7. Under Section 51(b) of CPC, the decree holder has to satisfy the court 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. In the instant case, there is nothing on record to show that the judgment debtor concealed any assets. There could be no such natural presumption as urged by the respondent that merely because a person is able to give the four boundaries of the house in which he is residing, it would lead to a presumption that it is his own house.
8. The arrest and detaining a person in prison for non payment of money is an extraordinary step and the method of execution by way of arrest should be resort to by the court only when it is satisfied on cogent evidence that the judgment debtor has or has had since the date of the decree the means to pay the amount of decr
