CRP(MD)/1650/2026 of R. Christian Johnson Raj Vs Kumaran Petroleum on 7 September 2026

O R D E R

This Civil Revision Petition has been filed challenging the order passed in E.P.No.40 of 2021 in OS No.73 of 2009, dated 25/04/2026 by the I Additional Subordinate Court, Nagercoil.

2. The petitioner is the judgment-debtor/defendant in the suit. The Execution Petition was filed by the respondent/decree-holder seeking execution of the decree by arrest and detention of the petitioner.

3. The learned counsel for the petitioner submitted that the Executing Court has passed the order of arrest without following the procedure contemplated under Section 51 of the Code of Civil Procedure, 1908. According to the learned counsel, under the proviso to Section 51 CPC, where the decree is for payment of money, execution by detention in civil prison shall not be ordered unless, after giving the judgment- debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects, or has refused or neglected, to pay the same.

4. The learned counsel further submitted that the power of the Executing Court to order arrest and detention is subject to the conditions and limitations prescribed under Section 51 CPC. He further relied upon Order XXI Rule 37 CPC, which provides that, where an application is made for execution of a decree for payment of money by arrest and detention of the judgment-debtor, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court and show cause why he should not be committed to the civil prison, except in cases where the Court is satisfied, by affidavit or otherwise, that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of delaying the execution of the decree.

5. It was further contended that under Order XXI Rule 40 CPC, when the judgment-debtor appears in obedience to the notice issued under Rule 37, the Court is required to hear the decree-holder and take such evidence as may be produced by him in support of the execution petition and thereafter afford an opportunity to the judgment-debtor to show cause as to why he should not be committed to the civil prison.

6. The learned counsel, therefore, submitted that the Executing Court has not properly followed the procedure prescribed under the aforesaid provisions. According to him, the respondent/decree-holder failed to establish that the petitioner had the means to pay the decreetal amount. However, without properly ascertaining whether the petitioner had sufficient means to discharge the decree debt, the Executing Court mechanically passed an order directing his arrest.

7. The learned counsel further submitted that the petitioner had filed a means affidavit denying that he had sufficient means to discharge the decretal amount. According to him, the burden was upon the decree- holder to establish that the petitioner had the means to pay the decreetal amount and that he had wilfully refused or neglected to pay the same and prays for allowing the civil revision petition.

8. In support of his submissions, the learned counsel relied upon the judgment rendered by the Hon'ble Supreme Court in the case of Jolly George Varghese and another v. The Bank of Cochin Ltd., reported in [1980]2 S.C.R 913 and also relied upon the judgment of this Court rendered in C.R.P(NPD)No.1251 of 2011, dated 06.02.2017 (T.Dharmalingam Vs. K.P.Bharathi and 4 others), particularly paragraph 23, to contend that the Executing Court has to satisfy itself regarding the means of the judgment-debtor before ordering his arrest and detention, wherein it has been held as follows:- '23.This Court also clearly held that if the Executing Court has passed the order of arrest, attachment or otherwise for the relief moulded it should find out adequate reasoning to pass such an order in writing after arriving at its full satisfaction with regard to the means position of judgment debtor. If that is so, then the onus is undoubtedly upon the decree-holder to prove that the judgment-debtor had enough means and where with all to discharge the decree in whole or part, but even then they did not discharge. This would mean, unambiguously and undoubtedly that the decree holder who wants to levy the execution Order 21, Cr.P.C. must bring his case and relief against the judgment-debtor within the ambit of Section 51 of the Code of Civil Procedure and the ingredients of which are the sine-qua-non for any Executing Court to mould the relief under Order 21, Rule 35 to 40 in executing the decree for the recovery of money. If not for any reason or for the reason of want of evidence, it is undesirable for the Executing Court to order the arrest of the judgment- debtor.”

9. Per contra, the learned counsel appearing for the respondent/decree-holder submitted that the respondent had instituted the suit for recovery of money in the year 2009 and obtained a decree on 07/09/2011. Since the petitioner failed to discharge the decreetal amount and had been delaying the payment, the respondent filed E.P.No.40 of 2021 for recovery of the decreetal amount and sought execution of the decree by arrest and detention of the judgment-debtor.

10. The learned counsel for the respondent further submitted that the Executing Court had issued notice to the petitioner pursuant to the filing of the Execution Petition. The petitioner appeared before the Executing Court and filed his counter. Thereafter, in order to establish the means of the judgment-debtor, the decree-holder examined himself as P.W.1 and was duly cross-examined by the petitioner. After considering the oral and documentary evidence, the Executing Court came to the conclusion that the petitioner had sufficient means to discharge the decretal amount and that he had deliberately failed to do so.

11. The learned counsel further submitted that under the proviso to Order XXI Rule 37 CPC, notice is not necessary if the Court is satisfied, by affidavit or otherwise, that the judgment-debtor is likely to abscond or leave the local limits of the jurisdiction of the Court with the object or effect of delaying the execution of the decree. It was further submitted that the petitioner had filed a means affidavit merely denying that he had sufficient means and stating that he was not having any lorry. However, the respondent relied upon the written statement filed by the petitioner in the suit, wherein the petitioner had admitted that he was the owner of 15 lorries and that his brother was the owner of five lorries. According to the learned counsel, the petitioner cannot now take a contrary stand before the Executing Court merely to defeat the rights of the decree-holder and prays for dismissal of the civil revision petition.

12. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent/decree-holder and perused the materials available on record.

13. It is not in dispute that the respondent/decree-holder instituted the suit for recovery of money in the year 2009 and obtained a decree on 07.09.2011. Thereafter, the respondent filed the Execution Petition only in the year 2021, seeking to realise the decreetal amount. The decreetal amount was initially about Rs.4,74,457/-/- and, with interest, the amount now claimed is stated to be around Rs.10,00,000/-.

14. The principal contention of the learned counsel for the petitioner is that the Executing Court has not followed the procedure contemplated under Section 51 CPC and Order XXI Rules 37 and 40 CPC and that the respondent/decree-holder failed to establish that the petitioner had the means to pay the decreetal amount.

15. However, a perusal of the records would reveal that the decree had attained finality, as the petitioner did not prefer any appeal against the same. In the execution proceedings, the petitioner entered appearance pursuant to the notice issued by the Executing Court and filed his counter. The respondent/decree holder filed a means affidavit and examined himself in support of his contention.

16. The Executing Court, after considering the evidence adduced by both parties, particularly the evidence of the decree-holder and the stand taken by the petitioner, arrived at a finding that the petitioner had sufficient means to discharge the decreetal amount and had deliberately failed to do so.

17. It is true that, under the proviso to Section 51 CPC, in the case of a money decree, detention of the judgment-debtor in civil prison can be ordered only when the conditions prescribed therein are satisfied. In particular, the Court must be satisfied, for reasons recorded in writing, that the judgment-debtor has, or has had since the date of the decree, the means to pay the decreetal amount or a substantial part thereof and has refused or neglected to pay the same.

18. In the present case, the Executing Court had issued notice to the petitioner and afforded him an opportunity to contest the execution proceedings. The petitioner himself entered appearance, filed his counter to the means affidavit, and was cross examined the petitioner before the Executing Court. Therefore, it cannot be contended that the petitioner was deprived of an opportunity to show cause against the proposed arrest and detention.

19. Though the petitioner denied that he was having sufficient means and stated that he was not owning any lorry, the respondent relied upon the written statement filed by the petitioner in the suit, wherein the petitioner had admitted that he was the owner of 15 lorries. The petitioner has not produced any convincing material before the Executing Court to establish that he had subsequently ceased to own the said vehicles or that he had no means whatsoever to discharge the decreetal amount.

20. The mere denial by the petitioner that he was not having sufficient means, in the face of his own admission regarding ownership of 15 lorries, cannot by itself be sufficient to hold that he had no means to discharge the decreetal amount. The Executing Court, upon considering the entire materials available on record, has recorded a finding regarding the means of the petitioner.

21. It is also relevant to note that the petitioner has not taken any steps to establish that he is wholly incapable of discharging the decree debt, nor has he placed any convincing material before the Executing Court to substantiate his plea of financial incapacity.

22. Therefore, this Court finds that the Executing Court has considered the relevant materials and has passed the order of arrest after affording sufficient opportunity to the petitioner. The procedure contemplated under Section 51 and Order XXI Rules 37 and 40 CPC has been substantially followed. Hence, this Court does not find any illegality, infirmity or perversity in the order passed by the Executing Court warranting interference in exercise of the revisional jurisdiction of this Court.

23. In the result, this Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.

07.09.2026 Index : Yes / No Internet : Yes / No NCC : Yes / No er To,

1. The I Additional Subordinate Judge, Nagercoil.

2. The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.

R.POORNIMA, J. er CRP(MD)No.1650 of 2026 07/09/2026