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Judgment
V. Kanagaraj, J.—The petitioner is the judgment debtor and he has come forward to file the above Civil Revision Petition against the orders
passed by the Court of District Munsif, Krishnagiri, made in E.P. No. 25 of 1999 in O.S. No. 3 of 1995 dated 29-09-1999.
Today when the above Civil Revision Petition was taken up for consideration in the presence of the learned counsel for the petitioner and with
no representation made on the part of the respondent, inspite of the name of the respondent being printed in the list of today and therefore, this
Court is left with no option but to decide the above Civil Revision Petition in consideration of the grounds pleaded, having regard to the materials
placed on record and upon hearing the learned counsel for the petitioner.
The learned counsel for the petitioner would give the sum and substance of the whole episode covering the above Civil Revision Petition coming
to be filed stating that the subject matter is the decree amount of Rs. 14,144.50, which is due from the petitioner to the respondent and on the E.P.
initiated by the respondent in E.P. No. 25 of 1999 in the said Suit praying to arrest the respondent and commit him to the civil prison. The
execution Court would find that already similar proceedings initiated for the arrest of the petitioner as per E.P. No. 69 of 1996 and 37 of 1998
have been closed on account of non-co-operation of the police in causing the arrest of the petitioner and it came to be known that knowing the
steps taken, the petitioner was in the habit of escaping from the place of residence to some other place; that in his evidence, the respondent has
admitted to pay at the rate of Rs. 500/- per month. But, he never adhered to the said assurance given before the Court, inspite of the respondent
having his own means of earning by brokerage, by tailoring, by running S.T.D. booth and xerox machine and he is not a quarry worker as he has
stated in the petition and would ultimately order the E.P. as prayed for, as per its order dated 29-09-1999.
On the part of the learned counsel, he would be emphatic in his stand that the petitioner is not at all having those avenues of revenue and that he
is incapable of paying the said amount, since, he is a coolie and that it is the burden of the decree holder to prove to the satisfaction of the Court
the means of paying the amount and would cite the judgment delivered by the Karnataka High Court rendered in K.KARUNAKAR SHETTY
VS. SYNDICATE BANK, MANIPAL and reported in AIR 1990 KAR I following the judgment of the Honourable Apex Court rendered in
Jolly George Varghese and Another Vs. The Bank of Cochin, : wherein, the Supreme Court has clearly laid down as follows:
as long as there is no dishonesty and mala fide on the part of the judgment debtor to discharge his obligation, committing him to civil person would
amount to violation of article 11 of the International covenant on civil and political rights and article 21 of the Constitution of India. Therefore, it is
the decree holder, who has to demonstrate that the judgment debtor has willfully with the mala fide intention to deprive the benefit of the decree, is
refusing to pay the decreetal amount, inspite of having sufficient means to pay. The decreetal holder has not discharged that obligation by any
cogent evidence. Then the impugned order is clearly in contravention of the ruling of the Supreme Court"".
The learned counsel would also cite yet another judgment of the Bombay High Court rendered in Pundik Nazire Vs. Maharashtra State Farming
Corporation, wherein, also the above proposition of law has been reflected following the very same judgment of the Honourable Apex Court cited
supra and would try to establish that the petitioner is not having any means to pay of the debt amount.
In the above circumstances, since no representation has been offered on the part of the respondent inspite of notice and since no such materials
have also been placed on record to the effect that the burden of proof regarding the means of the petitioner has been established by means of
evidence before the lower Court and therefore, this Court is not able to arrive at any decision regarding the case, particularly when the lower Court
order is also not that much clear regarding this proposition of law and with the available materials placed on record, since this Court has to arrive at
the conclusion to decide the above Civil Revision Petition, it has to be mentioned that the respondent has not proved his burden that the petitioner
is having the means to pay the debt amount and hence, the following order.
In result,
i. the above Civil Revision Petition succeeds and the same is allowed, setting aside the order dated 29-09-1999 made in E.P. No. 25 of 1999 in
O.S.No. 3 of 1995 on the file of the Court of District Munsif, Krishnagiri;
ii. there shall be no order as to costs.