IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 8852 of 2009(O) ------------------------------------- AGAINST THE ORDER DATED 05/12/2007 IN IN EP 266/2007 IN OS.416/2004 of MUNSIFF COURT, N.PARAVUR .................... PETITIONER(S): ----------------------- SEBASTIAN (DEVASSY), AGED 64, S/O. MATHAI, MARATHONTHARA VEEDU, KADALVATHURUTHU KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. BY ADV. MR.P.N.RAMAKRISHNAN NAIR MR.P.VISWANATHAN RESPONDENT(S): ------------------------- SIFSON, AGED 45, S/O. UTHUP, PAYNEDATHU VEEDU, KADALVATHURUTHU KARA, GOTHURUTH, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. BY ADV. MR.B.RAMACHANDRAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.8852 OF 2009 (O) ----------------------------------- Dated this the 10th day of July, 2009 J U D G M E N T The judgment debtor in E.P.No.266/2007 in O.S.No.416/2004 on the file of the Munsiff's Court, North Paravur has filed this writ petition challenging the order passed by the execution court holding that he has sufficient means to pay the decree debt of Rs.73,689/- negativing his plea of no means and directing him to pay the decree debt in monthly instalments of Rs.3,000/-. The respondent in the petition is the decree holder. Propriety and correctness of the order passed by the learned Munsiff is impeached by the judgment debtor invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. Previously, the execution court had passed an order holding that the judgment debtor is having means and ordered his arrest and that order was challenged by the judgment WPC.8852/09 2 debtor by filing a writ petition, W.P.(C).No.7466/2008 before this Court and it was disposed by judgment dated 4.3.2008. When that writ petition was considered noticing the materials placed before the execution court, this Court found that the order passed negativing the plea of no means raised by the judgment debtor and ordering his arrest was not supported by legal evidence. Having regard to the arguments canvassed by both sides with the decree holder contending that the judgment debtor possessed of ten cents of property with a building, wherein he was stated to be in occupation, and the judgment debtor reiterating his plea of no means, this Court set aside the order of the execution court and remitted the case for fresh reconsideration granting opportunity to both sides to lead evidence in respect of their respective cases. Ext.P4 is the copy of that judgment. Pursuant thereto, both parties were examined and on the side of the judgment debtor, two documents were produced which show that long before the commencement of the litigation, in 1992 he had transferred the property of ten cents. The learned Munsiff, after appreciating the materials tendered, passed the WPC.8852/09 3 impugned order holding that the judgment debtor has sufficient means to pay the decree debt and thereupon directed him to discharge the debt by monthly instalments of Rs.3,000/-. 3. I heard the counsel on both sides. The learned counsel for the judgment debtor assailed the impugned order contending that it has been passed on no evidence. No material whatsoever has been produced to show that the judgment debtor is possessed of means to pay the decree debt or any substantive portion thereof, according to his counsel. On the other hand, the learned counsel for the decree holder inviting my attention to the observations made in the impugned order submitted that after appreciating the evidence tendered by both sides, the execution court has formed the conclusion that judgment debtor is possessed of sufficient means, and in the given facts of the case, no interference with the order is called for. 4. To issue a warrant against a judgment debtor on his WPC.8852/09 4 default to satisfy the decree debt, the mandate covered by Section 51 of the CPC has to be scrupulously followed. It must be proved by satisfactory evidence that the judgment debtor has or had the means to pay the amount of the decree or some substantive part thereof and he has refused or neglected to discharge the decree debt. The initial burden to prove that essential ingredient for issuing warrant against the judgment debtor is, no doubt, on the decree holder. The question then emerges for consideration whether the decree holder has discharged that burden satisfying the conscience of the court that the judgment debtor is possessed of means to discharge the decree debt or a substantive portion thereof and there is wilful default on his part to do so. The decree holder in his evidence has stated that the judgment debtor is having real estate business and that one of his sons is employed abroad. I am afraid, the circumstances so canvassed without supporting evidence to show the income derived or assets possessed by the judgment debtor is of no avail. The learned Munsiff expressing the opinion that the judgment debtor is hail and healthy, thus the means and ability, concluded that his plea of WPC.8852/09 5 no means has to be negatived. The judgment debtor may be hail and healthy, but that is not a ground to hold that he is possessed of means to pay the decree. That is a matter to be assessed independently without reference to the question of his health and capacity of earning. What is to be looked into is whether he has the means and not the capacity to make the means. The definite case canvassed by the decree holder that the judgment debtor is possessed of immovable properties to the extent of ten cents has been disproved by the documentary evidence tendered by the judgment debtor, which show that the said property had been transferred more than a decade before the commencement of the suit. Strange to notice that the learned Munsiff has found fault with the judgment debtor for not getting himself adjudged as an insolvent to support his plea that he has no means to pay the decree debt. The right of the judgment debtor or any person to get himself adjudged as an insolvent under the provisions of the Insolvency Act has nothing to do with the consideration of the question whether he has the means to pay the decree debt, which must be prima facie satisfied for issuing a warrant against him for WPC.8852/09 6 realisation of the decree debt. The order passed by the learned Munsiff cannot be sustained, and it is liable to be set aside, and I do so. Writ petition is allowed. S.S.SATHEESACHANDRAN JUDGE prp