C.R.P.No.853 of 2020

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on 16.03.2023

Delivered on 28.04.2023

CORAM:

The Hon'ble MR.JUSTICE SATHI KUMAR SUKUMARA KURUP

C.R.P.No.853 of 2020

and C.M.P.No.4537 of 2020

C.R.Pugalendhi

...Respondent/Defendant/Petitioner

-Vs-

Anbazhagan

...Petitioner/Plaintiff/Respondent

Prayer:- Civil Revision Petition filed under Section 115 of CPC., to set

aside the fair and decretal order dated 14.02.2020 in E.P.No.55 of 2018 in

O.S.No.361 of 2018 on the file of the learned Subordinate Judge,

Jayamkondam.

For Petitioner

: Mr.N.Loganathan

for Mr.R.Valliappan

For Respondent

: Mr.S.Vijaya Kumar

Senior Counsel

for Mr.G.Bharadwaj

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C.R.P.No.853 of 2020

O R D E R

This Civil Revision Petition is filed to set aside the fair and decretal

order dated 14.02.2020 in E.P.No.55 of 2018 in O.S.No.361 of 2018 on

the file of the learned Subordinate Judge, Jayamkondam.

2.When the case came up for hearing on 09.03.2023, the learned

Counsel attached to the Office of the Counsel on record seeks time to get

instructions from his client and also he submits that already the Revision

Petitioner deposited a sum of Rs.2,00,000/- before the Court towards the

Execution Petition and Rs.1,00,000/- at the time of admission of this Civil

Revision Petition.

3.The learned Senior Counsel for the Respondent Thiru.S.Vijaya

Kumar also present in Court. He invited the attention of this Court, to the

order passed by the learned Executing Court Judge in E.P.No.55 of 2018

in O.S.No.361 of 2017 dated 14.02.2020. The learned Senior Counsel for

the Respondent/Decree Holder invited the attention of this Court to the

finding of the learned Sub Judge, Jayamkomdam as Executing Court

regarding the means of the Judgment Debtor. The Execution Petition was

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C.R.P.No.853 of 2020

filed for arrest of the Judgment Debtor. In the counter, the Judgment

Debtor had stated that he has no means. Therefore, the evidence was

recorded. Based on the evidence, and on appreciation of evidence, the

learned Sub Judge, Jayamkondam in E.P.No.55 of 2018 had found out that

the Judgment Debtor has the means to pay the Decree Holder but wantonly

evading to pay the dues. Therefore, he ordered arrest of the Judgment

Debtor/Revision Petitioner. After filing the Execution Petition in the year

2017, the Judgment Debtor/Revision Petitioner has succeeded in

protracting and delaying the Execution proceedings. Therefore, the learned

Counsel for the Revision Petitioner is directed to pay the balance amount

by 16.03.2023, failing which orders will be passed.

4.Today, [16.03.2023] when the case came up for hearing, the

learned Counsel for the Revision Petitioner submitted that the Executing

Court had not conducted an enquiry regarding the means of the Judgment

Debtor as per Order XXI Rule 40 of C.P.C. Therefore, the order passed by

the learned Subordinate Judge, Jayamkondam, in E.P.No.55 of 2018 in

O.S.No.361 of 2017 dated 14.02.2020 is perverse, and is to be set aside

cannot be accepted, pursuant to the order passed by the learned

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C.R.P.No.853 of 2020

Subordinate Judge, Jayamkondam.

5.As per Order XXI Rule 40 of C.P.C before proceeding with

execution of attachment of the property, the Executing Court should

exhaust the remedy available with the provision of arresting the Judgment

Debtor. Only after the arrest of the Judgment Debtor is exhausted at the 2^nd

stage, the Executing Court shall proceed with the attachment and sale of

the property. The Executing Court shall not proceed directly with the

execution of the decree by invoking the power to attach the property and

bring it to sale. Under those circumstances, the enquiry conducted by the

learned Subordinate Judge, Jayamkondam, is found to be reasonable and

acceptable.

6.The Decree Holder in Executio