T A BAVAJAN Vs. NEDUNGADI BANK

JUDGEMENT

(1.) THE above revision petition has been filed against the order of the learned District Munsif, Thirupathur, North Arcot-Ambedkar district, dated 17. 7. 1996 in E. A. No. 152 of 1995 in E. P. No. 185 of 1995 in o. S. No. 1330 of 1992. Plaintiff- respondent - Bank herein has obtained a decree against the petitioner herein and another person for recovery of a sum of rs. 6,600 with subsequent interest at 13 1/2% per annum from 2. 11. 1992 till the date of realisation , with costs. Since no amount subsequent to the decree was paid and the petitioner also was avoiding such payment, the decree holder filed an execution petition in E. P. No. 185 of 1995. THE decree holder has also prayed for arrest and detention of the petitioner herein in civil prison by invoking the provisions of O. 21, Rules 37 and 38, c. P. C. Notice has been ordered in the above application and it is seem from the averments made in the affidavit filed after the ex- parte order of arrest was made that the petitioner was ready to file a counter affidavit on 30. 4. 1996 to which date it was posted, that due to dysentery, he could not move above and on 2. 5. 1996, when he became alright, he met his advocate, who informed him that since no counter affidavit was filed on 30. 4. 1996, an ex parte order of arrest came to be made and then he filed the application in E. A. No. 152 of 1995. In the said affidavit as also in the counter affidavit praying that the counter affidavit may be received and that the ex parte order of arrest may be revoked, it was also submitted that otherwise, the petitioner will be put to irreparable loss and damages and that for the conduct of the case, he has favourable records with him.

(2.) IN the counter affidavit sought to be filed, it is found stated that it is for the decree holder - petitioner in the execution petition to prove the claims made in the affidavit, that the averments made therein as thought the petitioner was having properties and income are all inventions for the execution petition in question, that the petitioner is struggling hard in life, that he has no means to pay the decree amount, that the rate of interest claimed was not correct, that the amount claimed is also not correct and that, therefore, the application for arrest may be rejected.

(3.) I have carefully considered the submissions of the learned counsel in the light of the above decisions and the principles laid down therein. In my view, there cannot be any hard and fast rule or principle of universal application in appreciating the question, whether in a particular and given case the judgment-debtor is wilfully avoiding and evading payment under the decree. Copy of the decree discloses while describing the petitioner herein as a business man, his address being as No. 323, Big Bazaar Street , Thirupathur town. The counter affidavit as also the affidavit filed by the petitioner, copies of which are made available also disclose that the decree holder Bank has filed an affidavit in support of the execution petition and the relief of arrest was prayed for therein. The said affidavit is not made available before this Court. Even from the above facts disclosed on the materials produced, it is seen that the petitioner is a business man having a shop and carrying on business in a bazaar street, that inspit e of all these he has not come out in affidavit as also in the counter affidavit filed with details as to what business he has been carrying on, what happened to his business prospects, how and in what manner he is maintaining his family, and except a blanket assertion that he is a man of no means and he is finding it hard to live and maintain his family nothing concrete has been averred in them. This only gives an indication that taking advantage of some broad and general observations in some of the case laws, with particular reference to the facts of those cases the petitioner is trying to play foul with the process of court and in my view, even trying to above the process of court to avoid his obligations under the degree. The fact that notice has been ordered and time was granted for filing counter is an admitted fact and if the petitioner was not present and there was no representation, the learned Judge of the execution court as well within his rights to order for the arrest, at least to ensure his presence and production in court. The order also disclose that this is the second that such order ex parte had to be passed and once earlier such order made has been revoked. Otherwise, there is no meaning in the executing court having such powers and despite going after and behind the judgment-debtor to ensure even his presence in court. As notice earlier, even in the decision in Mani's case, (1993)1 M. L. J. 597, it is observed that at the stage of ordering arrest even affidavit evidence is enough and that the Court is not precluded from ordering arrest. The procedure and formalities stipulated under O. 21, Rule 40, Civil Procedure Code are obliged to be addressed to and followed only before an order of detention in Civil Prison is to be made and not even at this stage. The facts and circumstances of this case have given a definite impression that the petitioner is not only indifferent, but wilfully avoiding, taking advantage of some technicalities of law and evading to satisfy the decree by adopting delaying tactics also by absconding from court at the crucial time. The conditional order passed directing payment of Rs. 2 ,500 , which hardly comes to one-fourth of the amount decreed, appears to be very reasonable on the facts and circumstances of the case. In my view, the petitioner is not entitled to any indulgence whatsoever before this Court in this revision petition. The order of the court below does not suffer from any infirmity in law or on facts as alleged. Consequently, the revision petition fails and shall stand dismissed. The petitioner shall have two weeks'time form today to comply with the order, if he is prepared to avail of the concession, failing which the court below shall be at liberty to proceed with the matter further in accordance with law. Consequently, C. M. P. No. 13393 of 1996 is dismissed. .