IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 1ST MARCH 2010 / 10TH PHALGUNA 1931 CRP.No. 557 of 2006() --------------------- {IN EP 69/2004 IN OS.45/2003 OF THE MUNSIFF'S COURT, THODUPUZHA} .................... REVN. PETITIONER(S): DECREE HOLDER/PLAINTIFF: ---------------------------------------------------------- E.K. JOHN, S/O. KORA, ILLICKAL VEEDU, KOLANI KARA, THODUPUZHA VILLAGE. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): JUDGMENT DEBTOR/DEFENDANT: --------------------------------------------------------- MATHEW, S/O. AUGUSTHY, THENAMMACKAL HOUSE, OLAMATTOM KARA, THODUPUZHA. BY ADV. SRI.GEORGEKUTTY MATHEW THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 01/03/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- C.R.P.No.557 of 2006 --------------------------------------------------- Dated this the 1 st day of March, 2010 O R D E R Petitioner is the decree holder in E.P.No.69/2004 in O.S.No.45/2003 on the file of the Munsiff's Court, Thodupuzha. The above execution petition filed by the petitioner to realise the decree debt from the respondent judgment debtor was dismissed accepting the plea of 'no means' canvassed by the judgment debtor. Propriety and correctness of the order passed by the learned Munsiff is challenged in the revision. 2. I heard the counsel for the petitioner. 3. Perusing the order passed by the court below, it is seen that the evidence let in by the judgment debtor, who was examined as DW1.1 in the enquiry over his plea of 'no means' was found acceptable to the learned C.R.P.No.557 of 2006 :: 2 :: Munsiff to conclude that he had 'no means' to pay the decree debt. The learned counsel for the petitioner/decree holder has read over to me the evidence of the judgment debtor. To disprove the case canvassed by the decree holder that he had possessed two motor bikes, one after the other, just a few months before the institution of the suit for recovery of money against him the judgment debtor produced records to show that one of his bikes had been stolen and the other one already disposed of by sale, both such events occurring before the institution of the suit. In cross-examination of the judgment debtor it had come out that he is in occupation of a building comprised in 4 cents of property which originally belonged to his mother, who had passed away. In his re- examination, the Will purported to have been executed by his mother in favour of his father-in-law was produced and got marked as Ext.B3. Other than making a reference to C.R.P.No.557 of 2006 :: 3 :: Ext.B3, as one among the documents marked by the judgment debtor, there is no reference in the order of the learned Munsiff as to its validity or genuineness. Prima facie, it would appear that on the death of the mother, the judgment debtor, one of her sons had inherited some right over the property. The case advanced by the judgment debtor that his mother had executed a Will in favour of his father-in-law on the face of it could be taken only with a pinch of salt. Ext.B3 has not been proved as mandated by law. His evidence as DW.1 also indicate that he is paying the charges of the telephone installed in his house, which, according to him, comes to Rs.500/-. One of his children is studying in a Nursing College. The judgment debtor had canvassed a case that his father-in-law is taking care of the educational expenses of that child, which is hardly susceptible. Plea of 'no means' canvassed by the judgment debtor C.R.P.No.557 of 2006 :: 4 :: in the back drop of the materials placed by him before the court was rather unconvincing. So far as the decree holder is concerned, he need lead evidence only to show that there is no merit in the plea set up by the judgment debtor as to the lack of 'no means' to discharge the decree debt. Concrete evidence from the decree holder to negative that plea for disproving the claim of the judgment debtor is hardly possible. Once the decree holder leads evidence, prima facie, showing that the plea of 'no means' canvassed by the judgment debtor is unacceptable by mounting the box and swearing to his case disputing the case of the judgment debtor, then the burden shifts on the judgment debtor to discharge the decree debt. 4. The judgment debtor, immediately prior to the filing of the suit, possessed a bike; that a telephone installed in his name in his house and a portion of the premises is C.R.P.No.557 of 2006 :: 5 :: also used for business purposes would indicate that his plea of 'no means' lacked credibility. The impugned order passed by the learned Munsiff cannot be sustained in the facts and circumstances presented in the case. Setting aside the order, the court below is directed to consider the matter afresh and pass appropriate orders on the plea of 'no means' canvassed by the judgment debtor taking note of the observations made above and in accordance with law. 5. Parties are directed to appear before the court below on 29.03.2010. Civil Revision Petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//