Birdichand vs Rosy David - 1985 Supreme(MP) 779

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates Appeared:
For the Appellant : P. P. Naolekar
For the Respondent: C. L. Kotecha

Headnote:(1) Affidavit – contents of – may be presumed to be correct in absence of counter – affidavit .
       (2) Civil Procedure Code, 1908 – S. 115 (as amended in M. P.) – order passed by Addl. District Judge – revision is maintainable before the High Court.
       (3) Civil Procedure Code, 1908 – O. 21, R. 37 – application under – summary enquiry is necessary.
        Short Note
       1. The applicant is a decree – holder and the Late husband of the respondent was the judgment – debtor. In execution of the decree, the applicant attached Rs 11,000/ – which was payable to the judgment – debtor as his gratuity and Rs. 5,000/ – as insurance amount to him. The said amount was paid to the decree – holder. An objection was filed by the respondent who was the widow of the judgment – debtor for restitution of the gratuity amount which was wrongly paid to the decree• holder. The executing Court ordered its restitution to the widow of the judgment – debtor. The decree holder failed to pay the said amount hence an application was filed by the respondent to send the applicant to civil prison. The reply of the decree – holder was that he is unable to pay the said amount because of certain adverse circumstances. The executing Court without making any enquiry passed the impugned order for sending the applicant to civil prison.
       2. Held: So far as the maintainability of the revision is concerned, the order was passed by the Addl. District Judge. Hence under the 1st proviso to Section 115 as amended by M. P. Act No. 29/84, revision is maintainable. The Second contention of the learned counsel for the respondent may be correct but for that there must be evidence on record to warrant a finding. Since the parties were given no opportunity to lead the evidence, the lower Court was not justified in passing the final order. However, it was incumbent on the applicant to file a counter – affidavit. A direction is hereby given to the applicant to file a counter – affidavit denying the allegation made by the non – applicant. If it is not done then there would be a presumption that the applicant accepts these allegations and in that case no evidence would be required to be adduced. If such a counter – affidavit is filed, the lower Court shall proceed to make an enquiry and give opportunity to both the parties to lead the evidence. Of course, the enquiry would be summary. The parties are directed to appear before the lower Court on 15 – 9 – 85. The Court shall thereafter fix the case for evidence and see on the date of evidence if the counter – affidavit is filed and shall thereafter proceed according to law. Revision allowed.