IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 22143 of 2007(J) -------------------------- OS.229/2000 of MUNSIFF'S COURT, KUTHUPARAMBA .................... PETITIONER(S): --------------- P.MUSTHAFA, S/O.ALUPPY, SHANA COTTAGE, ELIPPATTACHIRA, KUTHUPARAMBA AMSOM, NARAVOOR DESOM. BY ADV. SRI.V.V.ASOKAN SMT.S.AMINA RESPONDENT: --------------------- P.V.SAHADEVAN, S/O.KUNHAMBU, PUTHIYAVEETTIL, PATTIAM AMSOM, POOKODE DESOM, CHALANAM FOOT WEAR, BUS STAND COMPLEX, KUTHUPARAMBA. ADV. SRI.R.SURENDRAN FOR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXTS: EXT.P1: TRUE COPY OF THE ORDER PASSED BY THE MUNSIFF COURT, KUTHUPARAMBA IN E.P.NO: 225/2002 IN O.S.NO: 289/2000 EXT.P2: -DO- OF THE JUDGMENT OF THIS HONOURABLE COURT IN W.P(C) 18422/2005 EXT.P3: -DO- OF THE ORDER PASSED BY THE MUNSIFF'S COURT, KUTHUPARAMBA INA E.P. NO: 225/2002 IN O.S.NO: 289/2000 jj /TRUE COPY/ P.S. to JUDGE K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 22143 OF 2007 ----------------------------------------------------------- Dated this the 18th November, 2009. JUDGMENT The decree holder in O.S.229/2000 of the Munsiff's Court, Kuthuparamba is the petitioner. He challenges Ext.P3 order dated 17.3.2007 in E.P.225/2002 of the court below finding that the respondent-judgment debtor was a person who had no means to satisfy the decree debt. 2. The suit O.S.289/2000 was decreed on 30.11.2001 allowing the petitioner to recover an amount of Rs.8,000/- with interest from the respondent. E.P.225/2002 was filed by the petitioner for personal execution of the decree. The respondent- judgment debtor pleaded that he had no means to satisfy the decree. According to him he was sick and unable to earn any income of his own. He also was not possessed of any movable or immovable properties. The respondent examined himself as a witness before the Execution Court. Exts. A1 to A5 documents were produced and marked on the side of the decree holder. On a consideration of the evidence on record and the contentions of the parties, the Court below found that the respondent was not possessed of sufficient means to pay the decree debt. Accordingly WPC 22143/2007 2 the execution petition has been dismissed. The said order which is produced as Ext.P3 in this writ petition is under challenge. 3. I have heard Mr. V.V.Asokan who appears for the petitioner and Shri. R.Surendran who appears for the respondent. I have also considered the rival contentions. 4. It is pointed out by the counsel for the petitioner that there was an earlier order passed in the same case on 17.2.2005 that the respondent was a person who had no means to pay the decree debt. However, the said order was set aside as per judgment dated 24.8.2006 of this Court in W.P(C) 18422/2005, which is produced as Ext.P2. As per Ext.P2, it has been found that the Execution Court had not considered the contentions of the parties in the light of the materials on record. No oral evidence also had been adduced. Therefore, the matter was remitted back with a direction to consider the issue afresh, on the basis of evidence. Thereafter the matter was considered again and as per Ext.P3 the very same finding has been entered by the Execution Court finding that the respondent had no means to pay the decree debt. 5. The counsel for the petitioner has drawn my attention to the fact that, admittedly an item of property owned by the WPC 22143/2007 3 judgment debtor had been transferred by him to one Mr. P.T. Jayachandran on 10.6.1998. However, an authenticated copy of the said document was not produced before Court. A photo copy which is stated to have been produced, has not been marked. However, the Court below has proceeded to go through the document and to place reliance on the same. That is not part of the record. The counsel also placed reliance on the fact that though the respondent has been stated to be a sick person, there is no evidence other than his oral testimony to prove the said fact. It is further pointed out that in another suit O.S.196/1998 where the very same respondent was the judgment debtor he was committed to the civil prison for non-payment of the decree debt. Shortly thereafter the amount due under the said decree is stated to have been paid in full. Therefore, it is contended that if the respondent is committed to civil prison, he would pay the amount. 6. Counsel for the respondent disputes the above contention and points out that the payment due under the earlier decree was not made by him but by some relative of his, at a time when he was committed to the civil prison. The said circumstance, according to him, cannot be a ground for concluding that the respondent was possessed of sufficient means. WPC 22143/2007 4 7. It is to be noticed that the respondent has sold an item of property of his on 10.6.1998. The said document has not been produced or marked in the proceedings by the Court below. Only a perusal of the document would show whether the same was a genuine transaction or not. As rightly pointed out by the counsel for the petitioner, there is absolutely no evidence to show that the respondent is a person is suffering from ailments of such a serious nature as to disable him from going for work and earning a livelihood. It is also worth noticing that though the respondent had filed an application for reopening of the case for letting in further evidence, the same was dismissed by the Court below on the ground that the document that was sought to be marked, was only a photostat copy. In view of the fact that the decision of the Court below is based on the conclusions drawn from a perusal of a document that does not form part of the record, the order of the Court below requires to be interfered with. Since the parties have also a complaint that sufficient opportunity was not given to them for placing and proving their respective contentions, ends of justice also require that the matter be remitted back to the Court below for a fresh consideration of the entire issue. WPC 22143/2007 5 8. For the foregoing reasons, the order dated 17.3.2007 of the Munsiff's Court, Kuthuparamba in E.P.225/2002 in O.S.289/2000, evidenced herein by Ext.P3 is set aside. The Court below is directed to consider the Execution Petition afresh and to pass fresh orders thereon after affording another opportunity to both the parties to let in any further evidence, both oral and documentary, as they may choose. The parties shall appear before the Court below on 10.12.2009. The writ petition is allowed as above. In the circumstances of the case, there will be no order as to costs. K. SURENDRA MOHAN Judge jj WPC 22143/2007 6 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: