IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 17TH NOVEMBER 2008 / 26TH KARTHIKA 1930 CRP.No. 584 of 2008 --------------------------------- EP.36/2007 of MUNSIFF COURT, MANJERI .................... REVN. PETITIONER/DEFENDANT: K. RAJENDRAN, IPP CENTRE QUARTERS, MEPPADAM P.O, MAMPAD AMSOM, NILAMBUR TALUK. BY ADV. SRI.VINOD VALLIKAPPAN RESPONDENT/PETITIONER: S. SREEJITH, S/O.D.SOMASEKHARAN MASTER, SREERANJINI HOUSE, EDAKKARA.P.O, EDAKKARA AMSOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. ADV. SRI.A.JAYASANKAR SRI.MANU GOVIND SRI.PRAMOD DAS LOHYA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.584 of 2008 -------------------------- ORDER The judgment debtor in E.P.No.36/07 on the file of the Munsiff's Court, Manjeri is the petitioner. He challenges in this revision the order passed by the execution court adjudging him as a person who is having means and ordering warrant. According to him, he filed an objection before the execution court, but that was not considered in the proper perspective and on the basis of the evidence adduced by the decree holder and the documents produced on his side, the court below has acted illegally despite the petitioner himself tendering evidence as RW1 swearing to his case of “no means”. 2. At the time of arguments, learned counsel for the petitioner passed on to me a copy of the objection filed by the petitioner/judgment debtor in the court below. His contention takes in also the contention that no amount is due from him to the decree holder, which contention he has not WPC 584/08 2 canvassed in any appeal. He contended that he has no property, income or job and is living at the mercy of others. He has further stated that because of the back pain, he is under treatment for a pretty long time and that he is unable to go for any job. He has contended that being a man with no means at all, he is unable to discharge the debt. In his evidence, the petitioner, as RW1, has admitted that he is having driving licence. The decree holder has given evidence that the petitioner/judgment debtor was working as an Instructor in a driving school at Mampad town till two months prior to his tendering evidence and that the name of the Institution is J.R. Driving School. According to PW1, the petitioner/judgment debtor is now working as a driver under various persons and he has sworn that the petitioner/judgment debtor is earning Rs.5,000/- per month from his avocation as driver. No doubt, the decree holder was not able to produce any record to show that the petitioner was working as an Instructor at J.R. Driving School WPC 584/08 3 and was also unable to say the names of persons under whom, the petitioner/judgment debtor is employed as driver. However, the fact that Exhibits A1 to A3 will show that the petitioner was having a bank account and Exhibit A1 cheque was issued by him is no ground to presume that he is having means. On the basis of the evidence tendered by PW1 and RW1, it can definitely be said that the petitioner is a driver and his avocation is driving. When so much is proved, it is for the petitioner to establish that though a professional driver, he is unable to work and therefore, he is unable to earn any income. It is not for the decree holder to give evidence as to the places of employment of the petitioner/judgment debtor when he is shown to be a driver and give evidence that from such and such persons, the petitioner/judgment debtor is getting so much as salary or wages. 3. In the revision, the petitioner has got a case that he is not in a position to work as a driver after he met with an accident. There is no WPC 584/08 4 mention as to what is the accident which he met with. In the objection, the contention is only that he is having back ache and is, therefore, not going for job. If at all he sustained injuries in an accident, there was no reason why that was not stated in the objection. It is also not disclosed as to whether the accident met with by the petitioner is a motor accident, especially when he is a driver. If at all he is involved in a motor accident, then a claim would have been filed by him before the Motor Accidents Claims Tribunal for damages. That also is not disclosed. It is admitted by RW1 that he is having a wife and a daughter and that he is residing with them. In the objection, the petitioner/judgment debtor has stated that he is maintaining himself by reason of charities extended by others. From the said contention it can only be understood that his case is that he is practically begging and not that he is depending on his wife. But, he has admitted, when examined, that his wife is employed in Health Department. If at WPC 584/08 5 all she is so employed, it should have been stated in the objection and he could have very well stated that it is she who maintains him. But, on the other hand, for the first time, he gives evidence that his wife is employed and he depends on her income. That is something which the decree holder was rendered incapable of answering at the time of enquiry under Rule 37 proceedings. It was, in the circumstances, that the petitioner/judgment debtor has been found by the court below as having means to discharge the debt, though not in lump, at least in substantial instalments, as the debt is less than Rs.90,000/-. There is nothing wrong in the finding entered into by the court below. There is no merit in this revision. This revision is, hence, dismissed. 17th November, 2008 (K.P.Balachandran, Judge) tkv