Jayachandran vs Karuppa Padayachi
2023 Latest Caselaw 5487 Mad

Citation : 2023 Latest Caselaw 5487 Mad
Judgement Date : 6 June, 2023

Madras High Court

Jayachandran vs Karuppa Padayachi on 6 June, 2023

                                                                              C.R.P.(NPD)No.3545 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED : 06.06.2023

                                                          CORAM

                                            MR.JUSTICE N.SESHASAYEE

                                              C.R.P.(NPD)No.3545 of 2019
                                              and C.M.P.No.23256 of 2019


                  Jayachandran                                                 ... Petitioner

                                                            Vs.

                  Karuppa Padayachi                                            ... Respondent

                  PRAYER: Petition filed under Article 227 of the Constitution of India, as
                  against the fair and decreetal order dated 20.04.2018 passed in E.P.No.76 of
                  2013 in O.S.No.261 of 2004 on the file of the Principal District Munsif
                  Court, Kallakurichi.


                                    For Petitioner           : Mr.D.Murugan

                                    For Respondent           : Mr.A.G.Rajan

                                                          ORDER

This revision is filed challenging the order of the Execution Court in

E.P.No.76 of 2013, which the plaintiff / Decree Holder had filed for

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3545 of 2019

executing a money decree in O.S.No.261 of 2004. The E.P is laid for arrest

and detention of the revision petitioner herein and the sum sought to be

recovered under the E.P is Rs.1,04,982/-.

2.1 In the E.P, the Judgement Debtor had taken out a plea that during the

pendency of the E.P, on 09.03.2017, he had paid Rs.82,000/- in full and

final settlement in a panchayat and produced a receipt before the Court. In

his counter affidavit, the Decree Holder had denied the aforesaid fact and has

averred that in E.P.No.76 of 2013, the revision petitioner / Judgement Debtor

had obtained repeated adjournments till 15.03.2017, for filing his counter

and it is in this backdrop, the Judgement Debtor had fabricated a receipt

dated 09.03.2017. Indeed, this receipt falls between 08.03.2017 and

11.03.2017. On both the dates, the E.P was posted before the Court.

2.2 The matter was enquired by the Execution Court, and it disbelieved the

same. This is now under challenge in this revision.

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3545 of 2019

3.Heard the learned counsel for the revision petitioner who submitted that

the trial Court in fitness of things ought to have ensured that a show cause

notice is first issued to the Judgement Debtor before any warrant of arrest is

issued.

4.It is not a case where the Court proceeded to order arrest of the Judgement

Debtor on mere filing of the E.P, but has issued notice on the E.P, invited the

objection of the Judgement Debtor, granted nearly four years for him to come

out with his objections and then proceeded to enquire the line of defence he

had taken in the Execution Petition, before rejecting the said defence.

5.Here is a situation where the plaintiff had laid a suit for recovery of money

in 2004, which ended in his favour. The defendant had preferred a First

Appeal rather unsuccessfully and also a Second Appeal again without any

success. After this ordeal, the plaintiff had filed E.P.No.76 of 2013, and

again the defendant had tested the patience of the legal system before coming

out with his line of defence that he had settled the decretal claim outside the

Court. Given the kind of acrimony that this suit has generated over the years,

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3545 of 2019

it is unbelievable that there could be an out of Court settlement whether the

E.P is pending. This is fortified by the following circumstance:

The E.P was posted on 08.03.2017 for filing the counter, from

which date the case was adjourned to 11.03.2017. The alleged

payment of Rs.82,000/- comes in between these two days, to be

precise on 09.03.2017. If only the amount had been paid on

09.03.2017, on 11.03.2017, when the E.P was posted, this fact

could have been presented before the Court but time was

sought on 11.03.2017, and the case was taken up on

15.03.2017. It is thereafter, the counter comes before the Court

with this receipt.

6.This Court appreciates the confidence of the Judgement Debtor that his

stories of fables would be believed by the Court. This Court does not find

any merit in the present C.R.P and the same is liable to be dismissed.

7.Turning to the other aspect which the learned counsel has raised vis-a-vis

https://www.mhc.tn.gov.in/judis C.R.P.(NPD)No.3545 of 2019

the procedure contemplated under Order 21 Rule 37 C.P.C., as already

indicated, the Execution Court has not rushed to pass an order of arrest but

gave him ample opportunity to defend his cause. Sofar as detention is

concerned, the very fact the defendant / Judgement Debtor says that he had

Rs.82,000/- to pay, it indicates that he has adequate means to pay the

decretal claim but he has taken a principal position not to pay it. This Court,

therefore, is satisfied that the Judgement Debtor has ample means to pay but