Madras High Court
Shyama Prasad.K vs P.K.V.Raghunath on 28 October, 2024
C.R.P.No.1273 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.10.2024
CORAM
THE HONOURABLE THIRU JUSTICE A.D.JAGADISH CHANDIRA
C.R.P.No.1273 of 2024
Shyama Prasad.K .... Petitioner
vs
P.K.V.Raghunath .... Respondent
Civil Revision Petition filed under Section 115 of Civil Procedure Code
against the order dated 07.12.2023 passed in E.P.No.4 of 2019 in I.A.No.154 of
2019 in O.S.No.24 of 2015 on the file of District Munsif cum Judicial Magistrate
Court, Mahe.
For Petitioner : Mr.T.Sai Krishnan
For Respondent : M/s.T.Mathi
ORDER
The Civil Revision Petition has been filed against the order dated
07.12.2023 passed in E.P.No.4 of 2019 in I.A.No.154 of 2019 in O.S.No.24 of
2015 on the file of District Munsif cum Judicial Magistrate Court, Mahe.
https://www.mhc.tn.gov.in/judis
2. The brief facts:
The petitioner is the decree holder/plaintiff in O.S.No.24 of 2015. The
petitioner has filed the suit in O.S.No.24 of 2015 seeking for mandatory
injunction directing the respondent/defendant to give vacant possession of the
plaint schedule residential building and vacate the residential building and
remove all the belongings of the respondent/defendant in the residential building.
3. In the suit, the petitioner/plaintiff had filed I.ANo.154 of 2019 under
Order 39 Rule 10 and Section 151 of Civil Procedure Code to pass interim orders
directing the respondent/defendant to pay a sum of Rs.1,61,000/- towards the
arrears of license fee for the period from 01.10.2015 till 31.01.2019 and also
directing the respondent to pay on the 7th of every month sum of Rs.4,000/-
towards monthly license fee for the period starting from 01.02.2019. The trial
Court, by order dated 23.08.2019 allowed I.A.No.154 of 2019 directing the
respondent/defendant to deposit a sum of Rs.1,88,000/- towards arrears of license
fee for the period from 01.10.2015 till 31.08.2019 within one month from the
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date of that order and to deposit Rs.4,000/- on the 7th of every month towards
monthly license fee from 01.09.2019. After trial, the suit came to be decreed on
10.12.2021. The respondent/defendant also vacated the premises. While so, the
petitioner has filed an execution petition in E.P.No.4 of 2019 under Order XXI
Rule 11(2) & 37 read with Section 151of Civil Procedure Code to pass an order
of arrest against the respondent/defendant/judgment debtor and detain him in
Civil prison and also direct the respondent/defendant/judgment debtor to pay a
sum of Rs.1,92,000/-.
4. The petitioner contended that the respondent/defendant was a renowned
and eminent lawyer, practicing in Sub Court, Mahe and Thalassery and having
sufficient means and sold 35 cents of landed property comprised in S.No.10/1 in
Chokli Sub Registration District and has adequate liquid cash and he is capable
to paying the entire decree amount in lumpsum.
5. The respondent has filed counter denying the allegations. On the side of
the petitioner/plaintiff, the petitioner examined himself as P.W.1 and Exs.P.1 to
P.5 were marked. No one was examined on the side of the respondent/defendant
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and certified copy of judgment in O.S.No.24 of 2015 has been marked as Ex.R.1.
The Court summoned a staff from the Sub Registrar's Office and he was
examined as C.W.1 and one Village Officer was examined as C.W.2 and the
Report filed by Village Officer, Chokli was marked as Ex.C.1. The executing
Court had dismissed the petition holding that the petitioner had failed to establish
the means of the respondent. Challenging the same, the present civil revision
petition has been filed.
6. Mr.T.Sai Krishnan, learned counsel for the petitioner/plaintiff/decree
holder submits that the respondent/defendant/judgment debtor is a Senior
advocate and he had sufficient means and there was a specific plea at paragraph
No.8 of the affidavit stating that the respondent/defendant/judgment debtor is a
leading Senior Lawyer, practicing for 44 years both in civil and criminal and he
also runs two Law Offices, one at Sreelakshmi, Paral Post, Chembra and another
office near District Court Post Office, Thalassery. Learned counsel submits that
the respondent is a man of sufficient means. The Execution Petition had been
filed pursuant to the order passed in I.A.No.154 of 2019, whereas, the executing
court, without properly assessing the matter, wrongly holding that the respondent
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was not having sufficient means, had dismissed the petition. Learned counsel
further submits that the petitioner is ready to establish the fact that the respondent
is a practicing advocate and he has got sufficient means and therefore, the
learned counsel prays that the order passed in E.P.No.4 of 2019 may be set aside
and the matter may be remitted back to the executing court affording one more
opportunity to the petitioner to establish his case.
7. Per contra, Mr.T.Mathi, learned counsel for the
respondent/defendant/judgment debtor submits that the plea raised by the
petitioner was that the respondent was holding landed property in S.No.10/1.
The Court, after examining C.W.1, the staff of the Sub Registrar's Office and the
Village Officer as C.W.2, has come to the conclusion that the respondent was not
owning any property and dismissed the application. Learned counsel for the
respondent submits that there is no illegality or irregularity in the order passed in
E.P.No.4 of 2019 and therefore, seeks dismissal of the revision.
8. Heard both sides and perused the materials available on record.
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9. Admittedly, it is the case of the petitioner/landlord that the
respondent/defendant/judgment debtor is a Senior Advocate and he was
practicing for the last 44 years both in civil and criminal matters in Mahe and
neighbouring State of Kerala, having two Law Offices, one at Sreelakshmi, Paral
Post, Chembra and another office near District Court Post Office at Thalassery.
The executing court, after examining C.W.1 and C.W.2 with regard to the landed
property in S.No.10/1 in Chokli, had dismissed the petition without rendering a
finding with regard to the professional status and the averment of the petitioner
regarding the judgment debtor running two law offices in his name. This Court is
of the opinion that one more opportunity should be afforded to the petitioner to
put forth and prove his case that the respondent is having sufficient means.
10. In view of the above, the order passed in E.P.No.4 of 2019 in
I.A.No.154 of 2019 in O.S.No.24 of 2015 on the file of District Munsif cum
Judicial Magistrate Court, Mahe is set aside and the Civil Revision Petition is
allowed. The matter is remitted back to the trial Court and the executing Court
shall, after affording opportunity to both sides, dispose of E.P.No.4 of 2019
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within a period of four months from the date of receipt of a copy of this order. No
costs.
28.10.2024
sr
Index:yes/no
website:yes/no
To
The District Munsif cum Judicial Magistrate Court, Mahe.
https://www.mhc.tn.gov.in/judis
A.D.JAGADISH CHANDIRA,J,.
sr
28.10.2024
https://www.mhc.tn.gov.in/judis
