Jothi Prakasam vs Krishnaraj
2023 Latest Caselaw 3275 Mad

Citation : 2023 Latest Caselaw 3275 Mad
Judgement Date : 28 March, 2023

Madras High Court

Jothi Prakasam vs Krishnaraj on 28 March, 2023

                                                                                  CRP.No798 of 2023

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                   DATED : 28.03.2023

                                                         CORAM

                              THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI

                                                   C.R.P.No.798 of 2023
                                                           and
                                                   CMP.No.6106 of 2023

                     1. Jothi Prakasam
                     2. Dhamarai                                        ... Petitioners


                                                 /Vs/
                     1. Krishnaraj
                     2. Yuvaraj
                     3. Senguntha Marabinal of Kamatchiammanpet,
                        Gudiyatham, Represented by Secretary Margabandhu,
                     4. Murugan, Treasurer                          ... Respondents



                     PRAYER : Civil Revision Petition filed under Article 227 of Constitution
                     of India, prayed to allow the Civil Revision Petition and to set aside the
                     order dated 22.03.2021 made in EP.No.27 of 2021 in OS.No.32 of 2008 on
                     the file of the learned Subordinate Judge, Gudiyatham, Vellore District.


                                     For Petitioners         : Mr.V.Perumal




                     1/5

https://www.mhc.tn.gov.in/judis
                                                                                       CRP.No798 of 2023

                                                           ORDER

This petition has been filed to set aside the order dated 22.03.2021

made in EP.No.27 of 2021 in OS.No.32 of 2008 on the file of the learned

Subordinate Judge, Gudiyatham, Vellore District.

2. Challenging the impugned order passed in EP.No.27 of 202 in

OS.No.32 of 2008 on the file of the learned Subordinate Judge,

Gudiyatham, Vellore District, the defendants 3 and 4 /judgment debtors

have preferred this revision.

3. The learned counsel for the revision petitioners would argue that

before the Executing Court, the decree holders had not produced sufficient

evidence to show that the Revision Petitioners are having sufficient means,

and that the Executing Court, without considering the same ordered arrest

and therefore prayed to set aside the impugned order.

4. To support his contentions, he relied on the preposition laid by the

Hon'ble Supreme Court in the case of Jolly George Varghese and another

vs/ The Bank of Cochin reported in AIR 1980 Supreme Court 470, the

relevant portion of which is extracted here under :

https://www.mhc.tn.gov.in/judis CRP.No798 of 2023

“ (A) Civil P.C (5 of 1908), S.51, O.21 R.37 read with

-Arrest and detention in Civil Prison-Judgment-debtor subsequent

to the date of decree having no means to pay-Absence of mala

fides and dishonesty-Arrest and detention is violative of Art. 11 of

International Covenant on Civil and Political Rights and Art.21 of

Constitution of India”.

5. He also relied on the preposition laid by the Hon'ble Madras

High Court in the case of P.Azeez Ahmed /vs/ State Bank of India,

Vaniyambadi reported in AIR 1995 Madras 104, the relevant portion of

which is extracted here under :

“ (A) Civil P.C (5 of 1908), S.51- Execution of decree-

Arrest of judgment-debtor-Ex parte order-Validity-Mere affidavit

of decree holder without any other documentary or oral evidence-

Not sufficient to hold that judgment -debtor has means to pay

decree amount-such exparte order, not sustainable”.

6. The above two judgments are not applicable to the facts of the

present case for the reason that in the counter statement filed by the

Judgment Debtor, he himself has admited that he had retired from the Co-

opertive Department, but had not produced any document to show that he

had no means and that the fourth respondent, a daily labour, he had also

not adduced any evidence to show that he had no means. The mere

https://www.mhc.tn.gov.in/judis CRP.No798 of 2023

statement that he has no movable or immovable property is not sufficient as

the law requires that sufficient materials have to be adduced to show that he

is the person of no means. No such evidence was produced before the

Executing court.

7. The Executing Court after considering the affidavit filed by the