The court emphasized the need to establish an attitude of refusal to pay the decree or a substantial part of it, and considered the judgment debtor's straitened circumstances in the context of imprisonment for non-payment of debts.

1. This civil revision petition is filed against the order dated 7.4.2010 passed by the Additional District Judge/Fast Track Court No.II, Salem, in R.E.P.No.59 of 2005 in O.S.No.83 of 2004.

2. The facts in nutshell would run thus:

(i) The first respondent herein obtained a money decree and it filed the REP No.59 of 2009, so as to get arrested the revision petitioner/judgment debtor for the purpose of recovering the decretal amount. The matter was contested.

(ii) On the side of the first respondent/decree holder one Vasudevan was examined as P.W.1 and no document was marked. On the side of the revision petitioner/judgment debtor, the revision petitioner herein examined himself as R.W.1 and Exs.B1 and B2 were marked.

(iii) Ultimately, the Executing Court rejected the plea of the revision petitioner/judgment debtor that he was a man of no means as on that date.

3. Being aggrieved by and dissatisfied with the said order, this revision has been filed on various grounds.

4. The learned counsel for the revision petitioner/J.D. placing reliance on the grounds of revision would develop his arguments, which could tersely and briefly be set out thus: The revision petitioner/judgment debtor is having 1/7th share in a joint family house and one self-acquired property and both the properties are under the mortgage in favour of the Industries Department. Over and above that, he also borrowed money from Syndicate Bank and in connection with that the said Bank obtained attachment also in respect of those two immovable properties. So far as the decree pertaining to the present REP is concerned, it is only a personal decree. However, in view of the encumbrances created already in respect of both the properties of the revision petitioner herein, he is not in a position to raise money so as to discharge the decretal debt.

(ii) The lower Court without considering all these aspects, after narrating the case on both sides, simply and cryptically held as though the revision petitioner/judgment debtor is a man of means and he should be arrested.

Accordingly, the learned counsel prays for setting aside the order of the lower Court.

5. While arguing, the learned counsel for the revision petitioner/judgment debtor has also submitted that the revision petitioner is for settling once and for all the matter and on his representation, the bank also has come forward for negotiations and sent communication to the revision petitioner.

6. Per contra, the learned counsel for R1 herein would put forth and set forth his arguments, which could pithily and precisely be set out thus:

(i) No doubt, the revision petitioner/judgment debtor is heavily indebted. There are a many as 11 decrees as against the judgment debtor and in such a case, it is for him to raise money in the way known to law with the help of his two properties and he cannot simply try to wriggle out of his liability by pointing out that there are mortgages and attachments and that he could not raise money.

(ii) The lower Court was right in rejecting such plea of no means and accordingly, ordered arrest, warranting no interference in the revision by this Court.

7. The point for consideration is as to whether there is any perversity or illegality in the order passed by the Executing Court.

8. A mere perusal of the order of the lower Court would leave much to be decided. In my considered opinion it is far from satisfactory also. In the counter filed by the revision petitioner/judgment debtor as well as in his chief examination affidavit he has detailed and delineated as to how he is heavily indebted. But, the Executing Court has not taken into account all those facts, but cryptically held that the revision petitioner/judgment debtor is a man of means.

9. At this juncture, I recollect and call up the following decision of the Honourable Apex Court:

(1980) 2 SUPREME COURT CASES 360 – JOLLY GEORGE VARGHESE AND ANOTHER V. THE BANK OF COCHIN, certain excerpts from it would run thus:

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