A.Gurusamy Vs. G.Gnanasekaran - Court Judgment

SooperKanoon Citationsooperkanoon.com/1167295
CourtChennai High Court
Decided OnJul-31-2013
JudgeT.RAJA
AppellantA.Gurusamy
RespondentG.Gnanasekaran
Excerpt:
in the high court of judicature at madras dated: 31.07.2013 coram the honourable mr.justice k.ravichandrabaabu c.r.p.(npd) no.214 of 2008 and m.p.no.1 of 2008 a.gurusamy .petitioner ..vs.g.gnanasekaran .respondent prayer:civil revision petition filed under section 115 of c.p.c.against the fair and decretal orders dated 21.09.2007 passed in o.e.p.no.7 of 2006 in o.s.no.120 of 2005 on the file of the district munsif, polur. for petitioner : mr.p.mani for respondent : mr.v.karthic for m/s.t.s.gopalan & co order this civil revision petition is filed against an order passed in e.p.no.7/2006 in o.s.no.120/2005 on the file of the district munsif court, polur whereby the executing court refused to proceed against item no.1 of the schedule property for realisation of the decretal amount on the ground that the said property being a house is not liable for attachment under section 60(c) of c.p.c.as the respondent/judgment debtor is a labourer whose property is exempted from attachment under the said provision. 2.heard both sides. 3.it is the contention of the learned counsel appearing for the petitioner/decree holder that such finding rendered by the court below is without any basis and without any material evidence placed by the judgment debtor to prove that he is a labourer. 4.on the other hand, it is the contention of the learned counsel appearing for the respondent that item no.1 of the schedule mentioned property in the execution proceedings being a house property belonging to the respondent who is a labourer, cannot be proceeded under section 60(c) of c.p.c.and therefore, the court below has rightly rejected the claim of the decree holder to proceed against the said property. 5.a perusal of the order passed by the court below would show that it came to the conclusion that the judgment debtor is a labourer and consequently, his house property cannot be attached under section 60(c) of c.p.c., without there being any material evidence placed by the judgment debtor in support of his claim. it appears that both sides have not let in any evidence in support of their rival claim. therefore, i am of the view that the finding rendered by the court below based on mere affidavit filed by the judgment debtor cannot be sustained in the absence of any material evidence placed before the court in support of such contention. no doubt, the court below observed that the decree holder can proceed against the other two items in the schedule for realisation of the decretal amount. 6.learned counsel for the petitioner invited my attention to the counter affidavit by the judgment debtor wherein he has stated that he is not owning any piece of land and therefore, there is no purpose in proceeding against those two items.i am not expressing any view on this aspect. i am only remitting the matter to the court below for considering the rival claim of the parties afresh after affording them an opportunity to produce material evidence in support of their claim. 7.accordingly, the impugned order passed in e.p.no.7/2006 is set aside and the matter is remitted back to the court below for considering the said application afresh on merits and in accordance with law. as already observed, both sides are at liberty to let in evidence in support of their claim. after hearing both sides, the court below shall pass orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order. the civil revision petition is disposed of accordingly. no costs. the connected miscellaneous petition is closed. vri to the district munsif polur
Judgment:

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.07.2013 CORAM THE HONOURABLE Mr.JUSTICE K.RAVICHANDRABAABU C.R.P.(NPD) No.214 of 2008 and M.P.No.1 of 2008 A.Gurusamy .Petitioner ..vs.G.Gnanasekaran .Respondent Prayer:Civil revision petition filed under Section 115 of C.P.C.against the fair and decretal orders dated 21.09.2007 passed in O.E.P.No.7 of 2006 in O.S.No.120 of 2005 on the file of the District Munsif, Polur.

For Petitioner : Mr.P.Mani For Respondent : Mr.V.Karthic for M/s.T.S.Gopalan & Co ORDER

This civil revision petition is filed against an order passed in E.P.No.7/2006 in O.S.No.120/2005 on the file of the District Munsif Court, Polur whereby the Executing Court refused to proceed against Item No.1 of the schedule property for realisation of the decretal amount on the ground that the said property being a house is not liable for attachment under section 60(c) of C.P.C.as the respondent/judgment debtor is a labourer whose property is exempted from attachment under the said provision.

2.Heard both sides.

3.It is the contention of the learned counsel appearing for the petitioner/decree holder that such finding rendered by the court below is without any basis and without any material evidence placed by the judgment debtor to prove that he is a labourer.

4.On the other hand, it is the contention of the learned counsel appearing for the respondent that Item No.1 of the schedule mentioned property in the execution proceedings being a house property belonging to the respondent who is a labourer, cannot be proceeded under section 60(c) of C.P.C.and therefore, the court below has rightly rejected the claim of the decree holder to proceed against the said property.

5.A perusal of the order passed by the court below would show that it came to the conclusion that the judgment debtor is a labourer and consequently, his house property cannot be attached under section 60(c) of C.P.C., without there being any material evidence placed by the judgment debtor in support of his claim.

It appears that both sides have not let in any evidence in support of their rival claim.

Therefore, I am of the view that the finding rendered by the court below based on mere affidavit filed by the judgment debtor cannot be sustained in the absence of any material evidence placed before the court in support of such contention.

No doubt, the court below observed that the decree holder can proceed against the other two items in the schedule for realisation of the decretal amount.

6.Learned counsel for the petitioner invited my attention to the counter affidavit by the judgment debtor wherein he has stated that he is not owning any piece of land and therefore, there is no purpose in proceeding against those two iteMs.I am not expressing any view on this aspect.

I am only remitting the matter to the court below for considering the rival claim of the parties afresh after affording them an opportunity to produce material evidence in support of their claim.

7.Accordingly, the impugned order passed in E.P.No.7/2006 is set aside and the matter is remitted back to the court below for considering the said application afresh on merits and in accordance with law.

As already observed, both sides are at liberty to let in evidence in support of their claim.

After hearing both sides, the court below shall pass orders on merits and in accordance with law within a period of three months from the date of receipt of a copy of this order.

The civil revision petition is disposed of accordingly.

No costs.

The connected miscellaneous petition is closed.

vri To The District Munsif Polur