IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 CRP.No. 1176 of 2001(E) AGAINST THE ORDER DATED 02/04/2001 IN EP.NO.20/1993 IN OS.NO.103/1980 OF SUB COURT, NEYYATTINKARA REVN. PETITIONER: 6TH RESPONDENT: DEFENDANT NO.6: S.RAJA MOHANAN NAIR, ASWATHI, SANKARA VILASOM, VANDANNOOR, PERUMPAZHUTHOOR. BY ADV. SRI.R.T.PRADEEP RESPONDENTS: DECFREE HOLDER & JUDGMENT DEBTORS 1-5, 7 & 8: PLAINTIFF: 1. STATE BANK OF TRAVANCORE, NEYYATTINKARA, REPRESENTED BY ITS BRANCH MANAGER. 2. M/S.NIVO ELECTRICALS AND ELECTRONICS PRIVATE LTD., REPRESENTED BY ITS MANAGING DIRECTOR AND HAVING ITS REGISTERED OFFICE AT KAVITHA NIVAS, THOZHUKKAL, NEYYATTINKARA. 3. V.SURENDRANATHAN NAIR, MEDAYIL BUNGLOW, KULATHOOR, NEYYATTINKARA. 4. M.KRISHNA PILLAI, KRISHNA, THIRUPURAM, NEYYATTINKARA. 5. P.SREEKUMAR, SAROJALAYAM, KUNNUKUZHI, THIRUVANANTHAPURAM. 6. T.SARASWATHI AMMA, PUTHIYILVEEDU, ATHIYANNOOR, ARALUMMOODU, NEYYATTINKARA. 7. M/S.KERALA STATE SMALL INDUSTRIES DEVELOPMENT AND EMPLOYMENT CORPORATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM, REPRESENTED BY ITS MANAGING DIRECTOR. 8. NEYYATTINKARA INDUSTRIAL VENTURES AND ORGANISERS, A PARTNERSHIP FIRM CONDUCTING BUSINESS AT NEYYATTINKARA, REPRESENTED BY ITS MANAGING PARTNER, M.KRISHNA PILLAI, “KRISHNA”, STHIRUPURAM, NEYYATTINKARA. R1 BY ADV. SRI.R.S.KALKURA R7 BY ADV.SRI.M.A.MANHU, SC, SIDCO THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.M.P.NO.2748/2001 IN C.R.P.NO.1176/2001 DISMISSED 12/3/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1176 OF 2001 E -------------------------------------------- Dated this the 12th March, 2008 O R D E R The sixth judgment debtor in E.P.No.20 of 1993 in O.S.No.103 of 1980, Sub Court, Neyyattinkara is the revision petitioner. By the order impugned, the court below negatived the contention of the petitioner that he has no means to pay the decree debt. 2. The operative portion of the judgment reads thus: “In the result a decree is passed in the following terms: Plaintiff is entitled to recover Rs.73,368.48 together with interest at the rate of 13.5% per annum from the date of suit till realisation and with cost from defendants 1 to 6. Defendants 1 to 6 are allowed to pay off that amount within six months from this date and in case of failure plaintiff is allowed to recover the same by the sale of plaint A schedule properties. If the net proceeds of the sale is not sufficient to discharge the same, plaintiff is allowed to recover the balance from the plaint B schedule property and also from the defendants 1 to 6 and their other assets. 7th defendant is allowed to recover Rs.29,287.43 together with interest at the rate of 9% per annum and penal interest at the rate of 1½% per annum from 2.10.1980 till realisation and with cost from the sale proceeds at the time of the sale of plaint A schedule property after the satisfaction of the entire decree amount due to the plaintiff Bank. The balance margin money now available with the plaintiff Bank is allowed to be adjusted towards the plaint amount.” Going through the judgment and decree, personal execution can be had C.R.P.NO. 1176 OF 2001 E :: 2 :: only if steps are taken to sell the plaint A schedule properties and if the net sale proceeds are not sufficient to discharge the decree debt. The prayer in the Execution Petition is in tune with the decree passed in the case. The oral evidence adduced in the case would indicate that an application was made for the issue of warrant against the sixth judgment debtor since there was no bidders in the court auction sale in respect of the immovable property. It has also come out in evidence that the Bank did not apply for permission to bid at the auction. 3. When application was made for arrest and detention of the sixth judgment debtor, he raised the plea of no means. The sixth judgment debtor gave evidence as RW1. PW1 was examined on behalf of the decree holder. It has come out in evidence that the petitioner, sixth judgment debtor, is a registered Ayurvedic Medical Practitioner and he runs a pharmacy where patients are being treated. It has also come out in evidence that the petitioner runs a medical shop. According to the decree holder, the sixth judgment debtor gets a monthly income of Rs.20,000/-. According to the sixth judgment debtor, he gets only Rs.2,000/- per month. It is stated by him that he has to maintain his family and that his children are students. It is admitted by him that he is having a telephone connection at his residence. From the medical shop he gets 15 to 17% commission. The court below came to the conclusion C.R.P.NO. 1176 OF 2001 E :: 3 :: that the case of the sixth judgment debtor that he has no means to pay the decree debt is unbelievable. The evidence adduced on behalf of the decree holder was found reliable by the court below and it was held that the decree holder has succeeded in proving that the sixth judgment debtor is having sufficient means to pay the decree debt and that he has refused and neglected to pay the same. The decree was passed in the year 1980 and the Execution Petition was filed in 1993. The order was passed in the year 2001. The conclusion arrived at by the court below that the sixth judgment debtor has means to pay the decree debt was based on the evidence on record and on the basis of appreciation of evidence. The revisional court would not be justified in interfering with this finding of fact unless the finding is so perverse and illegal. I am of the view that the court below has rightly come to the conclusion that the sixth judgment debtor has sufficient means to pay the decree debt and that he has refused and neglected to pay the decree debt. 4. However, to my mind, the court below was not justified in issuing warrant against the sixth judgment debtor before the sale of the plaint A schedule properties in terms of the decree. As per the decree, six months' time was granted to defendants 1 to 6 to pay off the decree debt. The decree also provides that on failure to pay the same, the decree amount can be recovered by sale of the plaint A schedule C.R.P.NO. 1176 OF 2001 E :: 4 :: properties. If the net proceeds of the sale are not sufficient to discharge the decree debt, the decree holder is allowed to recover the balance from the plaint B schedule property and also from defendants 1 to 6 and their assets. Therefore, as per the terms of the decree, the plaint A schedule properties shall be proceeded with first for realisation of the decree debt. The evidence would indicate that steps were taken and that the sale did not take place for want of bidders. The order does not indicate that the sale of the plaint A schedule properties is impossible. The order also does not indicate that the stage where the personal execution against the petitioner and others has reached as per the terms of the decree. Therefore, the order to issue warrant against the sixth judgment debtor at this point of time was not quite proper. 5. For the aforesaid reasons, the Civil Revision Petition is allowed in part and the order dated 2.4.2001 to the extent to which direction is issued to issue warrant of arrest against the sixth judgment debtor is set aside. At the same time, the order dated 2.4.2001 holding that the sixth judgment debtor has the means to pay the decree debt and that he has refused and neglected to pay the decree amount is confirmed. After proceeding against the plaint A schedule properties, if the court feels that steps are to be taken for arrest and detention of the sixth judgment debtor, this order shall not preclude the court below from issuing warrant C.R.P.NO. 1176 OF 2001 E :: 5 :: for arrest of the sixth judgment debtor. Since the conclusion arrived at by the court below that the sixth judgment debtor has the means to pay the decree debt is hereby confirmed, no further enquiry in that regard would be necessary at that point of time. However, liberty is granted to the sixth judgment debtor to bring to the notice of the executing court any change of circumstance which would legally enable him to claim exemption from arrest and detention. The Civil Revision Petition is allowed to the extent indicated above and dismissed for the rest. No order as to costs. The executing court shall proceed with the execution in terms of the decree. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 1176 OF 2001 E O R D E R 12th March, 2008 -------------------------------------------