Madras High Court
Kannan vs M.Thanikachalam on 2 November, 2021
C.R.P. (NPD) No.2381 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 02.11.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.CHANDRASEKHARAN
C.R.P. (NPD) No.2381 of 2021
Kannan ... Petitioner /
Plaintiff
versus
M.Thanikachalam ... Respondent /
Defendant
PRAYER: Civil Revision Petition has been filed under Section 115 of the Civil
Procedure Code, to set aside the order and decree dated 14.08.2019 in E.P.No.53 of
2018 in O.S.No.166 of 2014 on the file of the learned I Additional Subordinate
Judge, Cuddalore.
For Petitioner : Mr.P.Dinesh Kumar
ORDER
This Civil Revision Petition is filed, challenging the order dated
14.08.2019 passed by the learned I Additional Subordinate Judge, Cuddalore, in
E.P.No.53 of 2018 in O.S.No.166 of 2014.
C.R.P. (NPD) No.2381 of 2021
2. The learned counsel for the petitioner submitted that, petitioner
filed the suit in O.S.No.166 of 2014 against the respondent for recovery of money
and the suit was decreed on 17.10.2016. Petitioner filed E.P.No.53 of 2018 for
arrest against the respondent for realising the decree amount. This E.P. was
dismissed on the ground that, the petitioner has not proved the means of the
respondent to order arrest for realising the decree amount. Challenging the said
order, this Civil Revision Petition is preferred.
3. The learned counsel for the petitioner submitted that, once the
respondent says that he has no means, he has to apply to declare him as insolvent.
Respondent has not taken any steps to declare him as insolvent. Not only that, the
respondent has not produced any materials to show that, he has no means to pay
the decree amount. On the other hand, petitioner examined himself as P.W.1 and he
gave evidence that the respondent has means to pay the decree amount. Without
considering the petitioner's case, the Execution Petition was dismissed stating that,
the petitioner has not proved that the respondent has means to pay the amount.
Challenging this order, the petitioner preferred this Civil Revision Petition.
C.R.P. (NPD) No.2381 of 2021
4. Considered the submissions of the learned counsel for the
petitioner and perused the records.
5. Section 51 of C.P.C. deals with the procedure to be followed in
execution. Proviso to Section 51 reads that,
"where the decree is for the payment of money, execution by detention in prison
shall not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the Court, for reasons
recorded in writing, is satisfied.
(a) that the judgment-debtor, with the object or effect of obstructing or delaying
the execution of the decree,
(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or
(ii) has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property, or
committed any other act of bad faith in relation to his property, or
(b) 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 and
refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account".
6. We are not concerned with sub-section (a) and (c) in this case.
As per sub-section (b), 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
C.R.P. (NPD) No.2381 of 2021
and refuses or neglects or has refused or neglected to pay the same. This sub-
section mandates the decree holder to prove that, the judgment-debtor has means,
to pay the decree amount. It is not required that, the judgment-debtor has to prove
that he has no means to pay the decree amount.
7. It is seen from the order of the learned I Additional Subordinate
Judge that, though P.W.1 said during the course of his evidence that, the
respondent has lakhs of rupees in his Bank Account, he was not able to give any
specific details with regard to the Bank Account of the respondent and the amount
available in his account. No other evidence was produced to show that the
respondent has means to pay the amount. Therefore, the learned I Additional
Subordinate Judge found that, the petitioner has not proved that the respondent has
means to pay the decree amount.
8. So far as the contention of the learned counsel for the petitioner
that, once the respondent takes up the plea and he has no means to pay the amount,
he has to apply to declare as insolvent, in the considered view of this Court, is not
correct. This contigency arises only when the judgment-debtor is arrested in
C.R.P. (NPD) No.2381 of 2021
execution of the decree for the payment of money and brought before the Court.
Only then the Court has to inform the judgment-debtor that he may apply to
declare him as insolvent. Therefore, the contention of the learned counsel for the
petitioner that, after receipt of notice, the respondent has not taken any steps to
declare him as insolvent and therefore, he may be arrested in execution of the
money decree, cannot be accepted.
9. For the reasons stated above, this Court finds no reason to
interfere with the order of the learned I Additional Subordinate Judge, Cuddalore
and the order dated 14.08.2019 in E.P.No.53 of 2018 in O.S.No.166 of 2014, is
hereby confirmed. This order will not stand in the way of petitioner pursuing his
remedy in the manner provided under law.
10. Resultantly, this Civil Revision Petition is dismissed. However,
there is no order as to costs.
02.11.2021
Speaking order / Non-speaking order
Index : Yes / No
sri
C.R.P. (NPD) No.2381 of 2021
G.CHANDRASEKHARAN, J.
sri
To
The I Additional Subordinate Judge,
Cuddalore.
C.R.P. (NPD) No.2381 of 2021
02.11.2021
