Madras High Court
M.Ragupathi vs R.Selvaraj on 12 November, 2021
C.R.P.(NPD) (MD) No.2784 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 12.11.2021
CORAM:
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P.(NPD) (MD) No.2784 of 2018
M.Ragupathi .. Petitioner
-vs-
R.Selvaraj .. Respondent
Prayer :- Petition filed under Section 115 of Civil Procedure Code
against the fair and decretal order passed by the learned District Munsif,
Thuraiyur in E.P.No.48 of 2017 in O.S.No.315 of 2004 dated 13.02.2018.
For Petitioner : Mr.N.Kamesh
For Respondent : Mr.V.S.Rishikesh,
Legal Aid Counsel
******
ORDER
The decree holder, whose execution proceedings has been
dismissed, has filed this Revision.
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C.R.P.(NPD) (MD) No.2784 of 2018
2.The revision petitioner/plaintiff had filed a suit in O.S.No.315 of
2004 against the respondent/defendant for recovery of a sum of
Rs.50,200/- together with subsequent interest @ 18% per annum from
the date of suit till the date of payment.
3.The petitioner would submit that on 12.05.2002, the respondent
had borrowed a sum of Rs.40,000/- to meet his urgent expenses and had
executed a demand promissory note in favour of the petitioner. However,
contrary to the assurance, the respondent had not paid the money.
4.The petitioner would state that despite the fact that the
respondent is working as a Clerk in the Lakshmi Vilas Bank Ltd., Erode
and is drawing a monthly salary of Rs.8,500/-, he has not repaid the
money thereby, constraining the petitioner to file the above suit.
5.The respondent remained ex-parte and an ex-parte decree came
to be passed on 31.08.2005. The petitioner, thereafter, sought to execute
the said decree by filing a petition in E.P.No.48 of 2017 seeking the
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C.R.P.(NPD) (MD) No.2784 of 2018
arrest of the respondent. The petitioner had also adduced the means
evidence in support of his case. In the affidavit filed in support of the
execution proceedings, the petitioner would submit that the respondent
was possessed of several movable and immovable properties and that he
was earning a monthly salary of Rs.20,000/-. Therefore, he was a man of
means, who has deliberately refusing to repay the loan amount.
6.The learned District Munsif, Thuraiyur, however, proceeded to
dismiss the said petition on the ground that the petitioner had failed to
establish the fact that the respondent was possessed of sufficient means
despite which, he was not coming forward to clear the dues. Challenging
this order, the petitioner is before this Court.
7.The learned counsel appearing on behalf of the petitioner would
submit that the respondent was employed with the Lakshmi Vilas Bank
as a Clerk and earning a monthly salary, though at present he has retired
from service. He would submit that the learned District Munsif,
Thuraiyur has overlooked the above fact. He would rely upon the
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C.R.P.(NPD) (MD) No.2784 of 2018
judgment of the High Court of Andhra Pradesh at Amaravati in Rajeti
Prabhakara Rao vs. Mosa Satyavathi & Ors. reported in AIR 2019 AP
55 and would draw the attention of this Court to paragraphs 12 and 13 in
support of his arguments.
8.Heard the learned counsels for the parties.
9.The petitioner has obtained an ex-parte decree for recovery of
money on 31.08.2005. Admittedly, the decree has not been challenged
by the respondent herein. Although the plaintiff has obtained a decree as
early as in the year 2005, the plaintiff has filed the execution petition
only on 21.08.2017, 10 days short of 12 years. The execution
proceedings have been filed to arrest the respondent/judgment debtor in
the event of his not paying the decree amount. The petitioner has filed an
affidavit in lieu of his means evidence, but however, the contents of the
statements made thereunder are not proved by any documentary
evidence. The petitioner, who claims that the respondent was employed
with the Lakshmi Vilas Bank and that he was possessed of sufficient
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C.R.P.(NPD) (MD) No.2784 of 2018
movable and immovable property, had not produced any evidence to
substantiate the same. Admittedly, the means evidence has been taken in
the absence of the respondent/judgment debtor. The judgment relied on
by the petitioner would only enure against him. In paragraph 14 of the
said judgment, it has been held as follows:-
“14.In the light of the above findings and
presidential jurimetrics when the facts of the case on
hand are perused, in the instant case also after
attending Court for some time, J.Drs. 3 and 4
remained absent and the execution Court set them ex
parte and posted matter for evidence of decree holder
to prove the means of judgment debtors. It must be
said that the execution Court was totally oblivious of
the procedure contemplated under Order XXI Rule 40
CPC which ordains that the means enquiry must be
held in the presence of the judgment debtor. It
appears in spite of the decree holder requesting the
Court to issue arrest warrant in terms of Rule 37(2)
CPC the Court below instead of issuing warrant held
decree holder failed to establish the means of the
judgment debtors and ultimately dismissed the E.P.
which is totally an erroneous order bereft of legal
mandate.”
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C.R.P.(NPD) (MD) No.2784 of 2018
10.The facts therein are different from the facts of the instant case,
since in the instant case, the judgment debtor has remained ex-parte
throughout the proceedings whereas, in the judgment cited above, the
judgment debtor had attended the proceedings for some time. Further,
the petitioner/decree holder has not been able to substantiate his
contention that the respondent, despite having sufficient income, had
deliberately failed to repay the amount thereby, warranting arrest. The
learned District Munsif, Thuraiyur has rightly considered the evidence on
record and dismissed the said petition, which requires no re-thinking by
this Court. Hence, the Civil Revision Petition stands dismissed. No
costs.
12.11.2021
abr
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C.R.P.(NPD) (MD) No.2784 of 2018
To
The District Munsif, Thuraiyur.
Note:-
In view of the present lock down owing to
COVID-19 pandemic, a web copy of the
order may be utilized for official purposes,
but, ensuring that the copy of the order
that is presented is the correct copy, shall
be the responsibility of the Advocate /
litigant concerned.
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C.R.P.(NPD) (MD) No.2784 of 2018
P.T.ASHA, J.
abr
C.R.P.(NPD) (MD) No.2784 of 2018
Dated: 12.11.2021
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