Madras High Court
Ramaiah vs S.A.Kadhar on 28 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
C.R.P(MD)No.1923 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 28.02.2025
CORAM
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(MD)No.1923 of 2023
and
C.M.P(MD)No.9603 of 2023
Ramaiah ... Petitioner/Respondent/
Defendant
Vs.
S.A.Kadhar ... Respondent/Petitioner/
Plaintiff
PRAYER: Civil Revision Petition is filed under Section 115 of Code of
Civil Procedrue, to set aside the petition and order, dated 13.04.2023
passed in E.P.No.46 of 2019 in O.S.No.165 of 2011 on the file of the
Principal Subordinate Judge, Tenkasi.
For Petitioner : Mr.P.Vinoth
For Respondent : Mr.A.Syed Abdul Khather
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C.R.P(MD)No.1923 of 2023
ORDER
The judgment debtor in O.S.No.165 of 2011 on the file of
Principal Sub Court, Tenkasi is the revision petitioner herein.
2. The respondent herein had filed the above said suit for the relief
of recovery of a sum of Rs.3 Lakhs which was given by the plaintiff to
the defendant as an advance under an unregistered sale agreement. The
defendant was set ex parte and an ex parte decree came to be passed on
15.06.2012.
3. Based upon the ex parte decree, the decree holder has filed
E.P.No.46 of 2019 to arrest the judgment debtor. Thereafter, the
judgment debtor had filed I.A.No.1 of 2020 under Order IX Rule 13 of
Code of Civil Procedure to set aside the ex parte decree. This application
came to be allowed by the trial Court on condition to pay a sum of Rs.
2,000/- as cost. Since the cost was not paid, I.A.No.1 of 2020 was
dismissed for default. The defendant had filed I.A.No.2 of 2025 to
restore I.A.No.1 of 2020 and the same is pending.
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4. In the meantime, in E.P.No.46 of 2019, the Executing Court has
passed an order on 13.04.2023 to arrest the judgment debtor. This docket
order is under challenge in the present revision petition.
5. According to the learned counsel appearing for the revision
petitioner, the trial Court has passed the said order without conducting a
means enquiry.
6. Per contra, the learned counsel appearing for the decree holder
had contended that in the counter filed to the execution proceedings, the
defendant has not taken any defence that he does not have the means to
satisfy the decree amount. In such circumstances, the question of
conducting means enquiry does not arise.
7. Heard the learned counsel on either side and perused the
material records.
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8. The judgment debtor had remained ex parte in the execution
proceedings and he was set ex parte on 21.09.2021. He had filed an
application on 17.03.2023 to set aside the ex parte order in E.A.No.1 of
2023. The said application was allowed by the Executing Court on
13.04.2023 thereby permitting the judgment debtor to participate in the
execution proceedings. It is pertinent to note that on the same date, the
impugned order of arrest has been issued by the Executing Court, namely
on 13.04.2023. Therefore, it is clear that when the defendant was
permitted to participate in the execution proceedings, thereafter, the trial
Court ought not to have proceeded to issue the order of arrest.
9. In view of the above said facts, the order impugned in the
revision petition is set aside and the matter is remitted back to the file of
the Executing Court for proceeding in accordance with law. The trial
Court is directed to dispose of I.A.No.2 of 2025 on or before 30.06.2025.
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10. With the above said observations, this Civil Revision Petition
stands allowed. No costs. Consequently, connected Miscellaneous
Petition is closed.
28.02.2025
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
gbg
To
1.The Principal Subordinate Court,
Tenkasi.
2.The Section Officer,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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R.VIJAYAKUMAR,J.
gbg
Order made in
28.02.2025
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