M.V.P. PARAMANANDASWAMI ALIAS PICHUMUTHU PILLAI Vs. A.K. SHANMUGHAM PILLAI

JUDGEMENT

(1.) THIS is an appeal against the order of the lower Court directing the arrest of the appellant in execution of the decree in O.S. No. 72 of 1946, on the file of the Court of the Subordinate Judge of Tinnevelly. The respondent obtained a decree in the above suit against the appellant for a sum of about Rs. 5,800. In execution of the decree the properties of the judgment -debtor were attached. His sons filed a claim petition. It was dismissed. The sons then filed O.S. No. 22 of 1947 for setting aside the order on the claim petition and for a declaration that the properties belonged to them. In that suit on 24th July, 1947, a consent order was passed to the effect that on the plaintiffs depositing into Court a sum of Rs. 300 the suit properties should not be sold till the disposal of the suit. On 18th December, 1947, the decree -holder filed another E.P. No. 138 of 1947 for the arrest of the judgment -debtor. On 17th February, 1948, one month's time was granted to the judgment -debtor for paying the decree amount by alienating the attached properties. It appears that the judgment -debtor did not pay the amount within the time granted. Subsequently the learned Subordinate Judge passed an order dated 17th March, 1948, directing the arrest of the judgment -debtor. The main reason given by the learned Judge for the arrest was that in his view the appellant was in possession of sufficient means to satisfy the decree.

(2.) THE judgment -debtor has preferred an appeal against that order.

(3.) THE learned Counsel for the respondent argues that the appellant is estopped from raising the plea that he has not sufficient means to pay the amount of the decree. He relied upon a consent order passed in E.P. No. 138 of 1947. Under that order one month's time was given to the decree -holder for alienating the attached properties. The argument is that as he has taken time from the Court for the purposes of alienating the properties and discharging the decree debt he must be deemed to have impliedly admitted that otherwise he would be liable to be arrested. In support of this argument the learned advocate relied upon an unreported judgment in R. Srinivasa Ayyar v. Nagore Darga S.A. No. 6220 of 1937. The facts of that case are different, and in our view they have no application to the case before us. In that case two months time was granted to the judgment -debtor for the payment of the amount on an affidavit filed by him to the effect that he would pay the amount of the decree if two months time was granted. He did not pay the amount. Then execution was taken to bring the properties to sale. It was held that the judgment -debtor having agreed to pay the amount and thereby accepted the executability of the decree, he was precluded from contending that the decree was not executable. The learned advocate also relied upon another -judgment reported in Bartlam v. Evans, (1936) 1 K.B. 202. In that case there was an ex parte decree. The judgment -debtor took time to pay the amount; within the time so taken he applied for setting aside the ex parte decree. The learned Judge held, applying the principle of approbation and reprobation that the judgment -debtor could not ask for setting aside the ex parte decree. The principle is very clearly stated at page 213 of that judgment: