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V.K.S. Sivam Vs. Thirupathiswami - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 111 of 1969
Judge
Reported inAIR1972Mad9
ActsCode of Civil Procedure (CPC), 1908 - Sections 51
AppellantV.K.S. Sivam
RespondentThirupathiswami
Cases ReferredIn Mohamed Ibrahim v. State Bank of Travancore
Excerpt:
- .....p. c. i agree with the decision. following this definition i am clear that, where the judgment-debtor is in possession of a house which he owns. it can be normally presumed that the judgment-debtor will be able to realise moneys from the said house by sale, mortgage or other encumbrances. in this case, apart from the fact that ex. a1 shows that the respondent judgment-debtor owns some houses in n. g. r. street, there is no evidence to the effect that he is in possession of those houses or that he is in a position to realise from them any substantial cash by sale, mortgage or other encumbrances. in the absence of such evidence, it will not be possible to decide at this stage whether the respondent judgment-debtor has got means to pay up the decree amount or a substantial portion.....
Judgment:

1. The decree-holder is the appellant herein and his grievance is that the learned First Additional District Judge, Coimbatore had held that the respondent. Judgment-debtor has no means to pay the decree amount in spite of his finding that the respondent has some houses in N. G. R. Street, Coimbatore as revealed by Ex. A1.

2. It is now established by Ex. A1 that the respondent judgment-debtors has some houses in N. G. R. Street, Coimbatore and the only question for consideration is whether possession of the said houses is tantamount to the fact that the respondent has means to pay the decree amount or a substantial portion thereof. The learned District Judge has observed in paragraph 6 of his Judgment that mere ownership of immovable property cannot by itself be taken to mean that the respondent herein has means to pay the decree amount. In Mohamed Ibrahim v. State Bank of Travancore, : AIR1964Mad233 , a Division Bench of this Court has held that 'means' occurring in Section 51 of the Code of Civil Procedure can only mean realisable assets and not cash and that, if a judgment-debtor has not sufficient assets from out of which the necessary moneys can be realised to pay up the decree amount, he will not be exempted by the provisions of Section 51 of the Code from being proceeded against personally for realisation of the amount due under the decree.

3. This Judgment lays down that possession of cash is not necessary and that possession of any realisable assets from which money can be had for the payment of the debt will denote possession of means as contemplated by Section 51 of the Civil P. C. I agree with the decision. Following this definition I am clear that, where the judgment-debtor is in possession of a house which he owns. it can be normally presumed that the judgment-debtor will be able to realise moneys from the said house by sale, mortgage or other encumbrances. In this case, apart from the fact that Ex. A1 shows that the respondent judgment-debtor owns some houses in N. G. R. Street, there is no evidence to the effect that he is in possession of those houses or that he is in a position to realise from them any substantial cash by sale, mortgage or other encumbrances. In the absence of such evidence, it will not be possible to decide at this stage whether the respondent judgment-debtor has got means to pay up the decree amount or a substantial portion thereof. The proper course under such circumstances is to set aside the order and remand the petition for disposal by holding an enquiry into the question whether the respondent is in possession of the said house and has the capacity to raise funds by sale, mortgage etc. for the purpose of paying the decree amount or a substantial portion thereof.

4. In the result, the appeal is allowed and the order of the learned First Additional District Judge, Coimbatore is set aside. The execution petition (E. P. R. No. 19 of 1967) is remanded to the executing court (Principal District Munsif Coimbatore) for the fresh disposal of the application after holding an enquiry into the question whether the respondent judgment-debtor is in possession of the said houses or any house and whether he is in a position to realise money by sale, mortgage etc., of the said properties. No costs.

5. Appeal allowed.


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