IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).No. 981 of 2010(O) ------------------------ OS.157/1998 of PRL.MUNSIFF COURT, PALAKKAD .................... PETITIONER/JUDGEMENT DEBTOR: ----------------------------------------------- K.BALAKRISHNAN, S/O.P.K.KRISHNAN NAIR, SUDHA NIVAS, KODUNTHIRAPULLY, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C RESPONDENT/DECREE HOLDER ---------------------------- STATE BANK OF TRAVANCORE, KANNADI BRANCH, PALAKKAD - 678 701. ADV. T SETHUMADHAVAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.981 of 2010 --------------------------------------- Dated this 03rd day of December, 2010 JUDGMENT Respondent appears through counsel. 2. This petition is in challenge of Ext.P3, order dated October 26, 2010 in E.P.No.303 of 2010 in O.S.No.157 of 1998 of the court of learned Munsiff, Palakkad. Respondent has obtained a decree for payment of money. It wanted personal execution against petitioner. Respondent alleged that petitioner has means to pay the amount but in spite of that, petitioner has refused/neglected to pay the amount. Petitioner filed counter statement denying the allegations and stated that he has no means. PW1 gave evidence that petitioner retired as Pharmacist in Govt. Homeo Hospital and is getting `.6000/- per month by way of pension. He also stated that petitioner has landed property. Petitioner challenged that statement of PW1 in cross examination suggesting that respondent has not produced any documents to support its contention. That suggestion of course is denied by PW1. Petitioner did not enter the box. Executing court accepted evidence of PW1 and found means of petitioner. That order is under challenge. Learned counsel contends that there is no O.P(C).No.981 of 2010 : 2 : evidence to show that petitioner is having sufficient means. Learned counsel for respondent points out that the case of respondent that petitioner is a pensioner drawing `.6,000/- per month is not disputed in the counter statement (Ext.P2). 3. I have gone through Ext.P2. There, petitioner has contended that he has no means to pay the decree amount. It is true that petitioner has not gone into the witness box but denial can also be by cross examination of the witness in the box. However in view of the order I am proposing to pass I am not going into the merit of contentions raised by petitioner. 4. It is pointed out by learned counsel for respondent that suit is of the year 1998 and that decree was passed in the year 1998. Having regard to the facts and circumstances of the case I am inclined to give petitioner an opportunity to adduce evidence. At the same time I must also bear in mind right of respondent who advanced loan some time before 1998, got a decree during that time and until now was not able to enjoy the fruits of the decree. In the circumstances I am inclined to remand the matter to the executing court but on condition. Resultantly this petition is allowed and the impugned order is set aside on condition that petitioner deposited in the O.P(C).No.981 of 2010 : 3 : executing court for payment to the respondent `.35,000/- (Rupees Thirty Five Thousand Only) within one month from this day. In case of non compliance this petition will stand dismissed in confirmation of the impugned order. On deposit of the amount as aforesaid, executing court shall give petitioner an opportunity to adduce evidence on his side. I direct that in case the amount is deposited and executing court is to decide the matter afresh, deposit of Rs.35,000/- as per the direction of this court shall not be taken as indicating means of petitioner. Parties shall appear in the executing court on 05-01-2011. (THOMAS P JOSEPH, JUDGE) Sbna/-