The execution court erroneously placed the burden of proof on the guarantor regarding property ownership; such a presumption of ownership without evidence is unsustainable.

ORDER :

R. SAKTHIVEL, J.

Aggrieved by the Order of attachment of movable properties passed in E.P. No.2698 of 2021 in Arbitration Case No.KB B EJ68/2020 on the file of 'the XXVIII Assistant City Civil Court, Chennai' ['Executing Court' for short], the second respondent therein has filed this Civil Revision Petition under Section 115 of the Code of Civil Procedure, 1908 .

2. The first respondent herein - Kotak Mahindra Bank is the execution petitioner in E.P. No.2698 of 2021, while the revision petitioner herein - Latha is the second respondent therein and the second respondent herein - Prime International is the first respondent therein. For the sake of clarity and convenience, the parties will hereinafter be referred to as per their array in E.P. No.2698 of 2021.

3. The Arbitration Proceedings were initiated by the execution petitioner – Kotak Mahindra Bank against the first respondent - Prime International and the second respondent - Latha stating that the first respondent is the borrower and the second respondent is the guarantor. An Award was passed on December 31, 2020. Based on the Award, Kotak Mahindra Bank filed the execution petition.

4. Though respondents 1 and 2 were arrayed in the execution petition, the relief was sought for only against the second respondent. The execution petitioner sought to attach only the movable properties lying in Old No.1403, New No.44, 15^th Main Road, Anna Nagar West, Chennai - 600 040, under Order XXI Rule 43 and 64 of the Code of Civil Procedure, 1908 .

5. In the execution petition, the second respondent filed a counter stating that she married one R.Pazhanimurugan in February 2010. He started an export business in the name and the style of 'Prime International'. He obtained signatures in some forms while she was living with him. In 2018, she separated herself from him owing to some matrimonial disputes and began residing with her father at Anna Nagar in the aforesaid house bearing Old Door No.1403. Further, she did not receive any notice with regard to the arbitration proceedings. Without initiating any action for recovery against the first respondent - Prime International, the execution petitioner is moving attachment of articles lying at second respondent's father's house which do not belong to the second respondent and the same is against the law. Accordingly, she prayed to dismiss the execution petition.

6. The Executing Court upon hearing either side concluded that at the time of entering into arbitration agreement the second respondent was living with her husband, but she did not give her husband's address as her address, instead she gave her father's address. Notice for the second respondent with regard to the arbitration proceedings were served to the second respondent's father's address. No prima facie evidence to show the alleged strained relationship between the second respondent and her husband. No document was adduced to show that the movable properties sought to be attached belongs to her father. Upon arriving at these findings, the Executing Court ordered for attachment of the movable properties described in the execution petition.

7. Reiterating the averments made in the Counter Statement filed by the second respondent, Mr.S.Parthasarathy, learned Counsel for the revision petitioner / second respondent - Latha submits that the second respondent as of now is residing with her father and the properties sought to be attached belong to her father and her sister. The execution petitioner did not produce any documents to show that the properties belong to the second respondent. Further, in this Civil Revision Petition, the second respondent has furnished bills to sho