1. The above revision is filed by the judgment-debtor-petitioner herein (fourth defendant in the suit) questioning the correctness of the order of the executing Court in E. P. 197 of 1983 in O. S. 21 of 1978 on the file of the Additional District Munsif, Madurai Town, dt. 2-3-1984.
2. It appears from the facts of the case and also as argued by the respective counsel appearing for the parties that the respondent herein obtained a decree against the petitioner herein in O. S. 21 of 1978 on the file of the Sub Court, Pudukottai. Thereafter, the decree holder filed E. P. 197 of 1983, under. O. 21 Rr. 22, 37, and 38 C. P. C. seeking arrest of the fourth defendant-petitioner herein. It was contended by the petitioner herein that the decree-holder-respondent cannot execute the decree against the petitioner as per the terms of the agreement Ex. B. 1. It is on this ground it was contended by the judgment-debtor that he is not entitled to pay the decree amount nor is he liable to be arrested.
3. The executing Court, considering the validity of Ex B 1, held that Ex. B I is not a registered document nor are their witnesses to this agreement entered into by the parties. Therefore, in so far as Ex B-I is concerned, the executing Court disbelieved the same. It is under these circumstances, the executing court directed that the judgment-debtor be arrested by 27-3-1984. It is this order that is questioned in the above revision.
4. Learned counsel Mr. K. T. Palpandian appearing for the petitioner contends that in a case where the executing. Court passes an order for the arrest of the judgment-debtor or to put him in a civil prison, the court must first he satisfied that the judgment-debtor is a person who is having funds and is evading payment of the decree amount. Reliance is placed on a decision reported in Jolly George Varghese v. Bank of Cochin : 2SCR913 and on the basis of this decision, it is contended by Mr. Palpandian that simple default in the payment of the decree amount to the decree-holder is not enough but it is for the decree-holder to prove that there is an element of bad faith in the mind of the judgment-debtor and the judgment-debtor is deliberately attempting not to pay the decree amount in spite of the judgment-debtor having sufficient funds to pay. In the above said decision, the Supreme Court at page 475 has observed as follows -
'The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it.'
Reliance is also placed on a decision reported in Ram Narayana Agarwal v. State of U. P. : 3SCR684 . It is on the basis of these decisions, learned counsel for the petitioner contends that the impugned order of the Court below suffers from irregularity-or illegality. He further contends that there is nothing in the impugned order to come to the conclusion nor is there any finding by the executing Court that the judgment debtor is having-enough means to pay or is wilfully evading to pay the decree amount. For want of these findings, it is contended that the impugned order of the court below is unjust, unreasonable and is contrary to law.
5. After perusing the impugned order of the court below and after going through the decisions cited by the counsel for the petitioner, I am of the view that the learned counsel is perfectly justified in raising this point. In this case, nothing is found in the impugned order that the judgment-debtor is having funds or that he is purposely delaying to pay the decretal amount. Under these circumstances, I am of the view that the impugned order of the executing court has to be set aside and it is accordingly set aside and this civil revision petition is allowed. The matter is remitted to the executing Court for fresh disposal according to law. The executing court, after taking tip the Execution Petition No. 197 of 1983 in O. S. 21 of 1978, on its file, will issue notice to the parties and dispose of the matter after due enquiry according to law. There will be no order as to costs.
6. Petition allowed.