IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 14TH JULY 2011 / 23RD ASHADHA 1933 OP(C).No. 2252 of 2011(O) ------------------------------------- [AGAINST THE ORDER DTD. 28/06/11 IN EP.NO.71/2010 OF I ADDITIONAL DISTRICT COURT, KOLLAM] .................... PETITIONER: ------------------- RASHEED, S/O. MUHAMMED HANEEFA, AGED 38 YEARS, THENGUMVILA VEEDU, VALAKODE.P.O., PUNALUR. BY ADV. SRI.K.ABDUL JAWAD. RESPONDENTS: ------------------------ 1. MUTHOOT LEASING AND FINANCE LTD., REPRESENTED BY ITS POWER OF ATTORNEY HOLDER, PRAVEEN V.V., S/O. VISWANATHAN NAIR, THENGUMKOTTU VEEDU, THRIKKANNAMANGAL, KOTTARAKKARA.P.O., KOLLAM – 691 506. 2. MEHARUNIZA, W/O. ALIYAR KUNJU, CHARUVILA PUTHEN VEEDU, VAKKANADU.P.O., KAREEPRA, KOLLAM – 691 506. 3. NABITHA BEEVI, W/O. MUHAMMED HANEEFA, THENGUMVILA VEEDU, VALAKODE.P.O., PUNALUR – 691 331. BY THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 14/07/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(C).NO.2252/2011-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXECUTION PETITION BEFORE THE DISTRICT COURT, KOLLAM IN E.P.71/10 FILED BY THE R.1. EXT.P.2: COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE 1ST ADDL. DISTRICT COURT, KOLLAM. EXT.P.3: COPY OF THE AFFIDAVIT FILED 1ST RESPONDENT BEFORE THE DISTRICT COURT, KOLLAM IN E.P.71/10. EXT.P.4: COPY OF THE AFFIDAVIT FILED BY THE PETITIONER BEFORE THE DISTRICT COURT, KOLLAM IN E.P. 71/10. EXT.P.5.A: COPY OF THE REGISTRATION CARD, REGIONAL CANCER CENTRE, MEDICAL COLLEGE, TVPM. OF THE PETITIONER'S MOTHER. EXT.P.5.B: COPY OF THE TREATMENT CARD REGIONAL CANCER CENTRE, MEDICAL COLLEGE, TVPM., OF THE PETITONER'S MOTHER. EXT.P.5.C: COPY OF THE COMMUNICATION DTD. 30/06/2010 TO THE SECRETARY, PUNALOOR MUNICIPALITY. EXT.P.6: COPY OF THE ORDER DTD. 28/06/11 IN E.P.71/2010 PASSED BY THE 1ST ADDL. DISTRICT JUDGE, KOLLAM. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.2252 of 2011 --------------------------------------- Dated this 14th day of July, 2011 JUDGMENT Petitioner is the third judgment debtor and surety for the principal debtor for the amount that the latter has borrowed from the first respondent. On the failure of the principal debtor to pay the amount, first respondent initiated arbitration proceeding and obtained an award. First respondent sought execution of that award before the first Additional District Judge, Kollam in E.P.No.71 of 2010. First respondent sought personal execution against petitioner alleging that in spite of having sufficient means he has refused to pay the amount due under the decree. That was resisted by petitioner contending that he has no means. Regarding means the Branch Manager of first respondent gave evidence as PW1 and stated that petitioner is earning `.9,000/- from his job and is having landed property. It is also the version of PW1 that petitioner has liquid cash in his custody sufficient to satisfy the decree. As against that, petitioner gave evidence as DW1 and denied that he has any means or liquid cash in his custody. Exts.B1 and B2 were produced to show that his mother is undergoing treatment in the R.C.C. Ext.B3 is produced to O.P(C).No.2252 of 2011 -: 2 :- show that his liability to pay rent arrears has been considered by the local authority and he was permitted to pay the amount (to the tune of `.55,800/- in installments). 2. Learned counsel for petitioner contends that in the absence of sufficient evidence regarding means let in by the first respondent, the executing court was not correct in issuing warrant of arrest to the petitioner. According to the learned counsel, that amounted to violation of human right and placed reliance on the decisions in Jolly George Varghese Vs. Bank of Cochin (AIR 1980 SC 470), Jayadev Singh A.K Vs. M.A Majeeth (2010(2) KHC 730) and Abraham Vs. Maharashtra Apex Corporation Ltd. (2011(3) KLT 15). 3. These decisions highlighted the position of law as to under what circumstances the decree holder is entitled to initiate personal execution and seek arrest and detention of the judgment debtor in civil prison. In Jolly George Varghese Vs. Bank of Cochin (supra) reference has been made to Article 11 of the International Covenant on Civil and Political Rights which said that no one shall be imprisoned merely on the ground of “inability to fulfill a contractual obligaiton”. The other decision relied on by the learned counsel also stated that in the absence of evidence O.P(C).No.2252 of 2011 -: 3 :- regarding means of judgment debtor he cannot be detained in the civil prison. 4. In Kuppuswamy v. P.G. Menon (1992(2) KLT 203) referring to the various authorities it is held that though the burden of proving the circumstances specified in Sec.51 Code of Civil Procedure (for short, "the Code”) lies on the decree-holder, strict proof of every details is not necessary. The decree-holder should give some indication or details of the properties or assets of the judgment debtor. It is competent to the executing court on the materials placed before it, to draw an inference as regards the statutory requirements under Sec. 51 of the Code. The question whether there are circumstances justifying the order for arrest is one of fact. The requirement of S. 51 of the Code will be satisfied if the judgment-debtor has means to pay the debt either from liquid resources or assets belonging to him which can reasonably furnish such resources. 5. Guided by the above principles I shall refer to the evidence on hand to decide whether executing court was justified in issuing warrant of arrest to the petitioner. PW1 who gave evidence on behalf of the first respondent claimed direct knowledge of the facts he has deposed. True, his evidence is not O.P(C).No.2252 of 2011 -: 4 :- supported by any documentary evidence. Learned counsel points out that in cross examination of PW1 he stated that though, he had been to the institution (allegedly) run by petitioner, he had not seen petitioner in that institution at that time and he did not know how many items of furniture are kept there, etc. But, petitioner as DW1 admitted that he was conducting a D.T.P centre and cyber cafe. He also admitted that he has two staff. He claimed that he has stopped that business about 5 years back. He admitted that the shop stands in his name and regarding which, he has been made liable to pay rent arrears as seen from Ext.B3. In other words the establishment stands in the name of petitioner even now though he claimed to have stopped the business about 5 years back. Regarding that, what is available is only the version of petitioner. There is no case or evidence that pursuant to stopping the business, he has informed the authorities including the landlord about it. After he had stopped business, normally there was no necessity for him to continue occupation of the rented premises for about 5 years. These circumstances were taken into account by the executing court. There is the evidence of PW1 on behalf of the first respondent as against that of petitioner as DW1. On a consideration of the O.P(C).No.2252 of 2011 -: 5 :- evidence, executing court found that version of the PW1 on behalf of the first respondent can be accepted. That finding is based on an appreciation of evidence on record. When a decision on the Court hinges on the appreciation of oral evidence, even the appellate court is not required to interfere unless there is something in the oral evidence which if noticed would have tilted the decision in favour of the appellant and which went unnoticed by the trial court. Now, petitioner requests this Court in exercise of its power under Article 227 of the Constitution to interfere with that finding. Article 227 is only to ensure that the subordinate civil courts acted within their bounds. Having heard learned counsel and considered the impugned order I am not inclined to think that the executing court has travelled beyond its bounds so that this Court is required to interfere under Article 227 of the Constitution. Therefore the challenge to the impugned order cannot stand. 6. However, having heard learned counsel and considered Exts.B1 and B2 which show that petitioner has been spending amount for the treatment of his mother for a dreadful disease I am inclined to show some leniency in favour of the petitioner. Petitioner can request the executing court for facility O.P(C).No.2252 of 2011 -: 6 :- to pay the amount (which I am told is more than `.5,00,000/-) in installments. To facilitate that, I am inclined to direct that warrant of arrest issued to petitioner will stand in abeyance for a period of 45 days from this day but, subject to condition. Resultantly this original petition is dismissed. But, it is directed that warrant of arrest issued to the petitioner will stand in abeyance for a period of 45 (forty five) days from this day subject to the following conditions: (i) Petitioner shall deposit in the executing court for payment to the first respondent `.50,000/- (Rupees Fifty Thousand Only) within a month from this day. In case that condition is not complied, it is open to the executing court to proceed with execution pursuant to the impugned order without any further enquiry regarding means. (ii) Petitioner is permitted to request the executing court within the above said time (45 days) for facility to pay the amount in installment. If any such request is made executing court shall after hearing first respondent also pass appropriate orders on that request. (THOMAS P JOSEPH, JUDGE) Sbna/-