IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN TUESDAY, THE 2ND NOVEMBER 2010 / 11TH KARTHIKA 1932 CRP.No. 2395 of 1999(B) ---------------------------------- EP. NO.704/1996 IN OS. 391/1993 OF PRL. SUB COURT, ERNAKULAM. ........... REVN. PETITIONER(S): JUDGMENT DEBTOR/DEFENDANT ---------------------------------------------------------------------------------- M/S.KIMA AGENCIES, M.G.ROAD, ERNAKULAM REP.BY SRI.SEBASTIAN JOSEPH, ABHSHEKA FLAT-2, KARIKAMURI CROSS ROAD, ERNAKULAM, PRESENT ADDRESS: SRI. SEBASTIAN JOSEPH, HOUSE NO.28/2386, PONNATH ROAD, CHILAVANNOOR, KADAVANTHRA, ERNAKULAM , KOCHI 682 020. BY SRI.C.C.THOMAS, SENIOR ADVOCATE RESPONDENT(S): DECREE HOLDER /PLAINTIFF --------------------------------------------------------------------- THE KERALA STATE ELECTRONICS DEVELOPMENT, CORPORATION LTD., (KELTRON), HAVING ITS REGISTERED OFFICE AT KELTRON HOUSE, VELLAYAMBALAM, THIRUVANANTHAPURAM 695 033, REP.BY ITS MANAGING DIRECTOR SRI. B.S.SASTRY, S/O. B.V.K. SASTRY, 2ND POLICE QUARTER, UDARASIROMANI ROAD, THIRUVANANTHAPURAM. R1 BY ADV. SRI.A.N.RAJAN BAB THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/10/2010, THE COURT ON 02/11/2010 PASSED THE FOLLOWING: tss THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - C.R.P. No. 2395 of 1999 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of November, 2010. ORDER Bhavadasan, J, Aggrieved by the order dated 8.7.1999 in E.P. 704 of 1996 in O.S. 391 of 1993, the judgment debtor before the court below has come up in revision. 2. The revision petitioner suffered a decree for a sum of Rs.2,90,984.99 with interest on 1,61,656.99 at 18% per annum at the hands of Sub Court, Ernakulam. The decree was put in execution. On receipt of notice, under Order 21 Rule 37 Code of Civil Procedure, the petitioner entered appearance and pointed out that he had no means to pay the decree debt. However, the court below found that the judgment debtor had 4.84 acres of land and that he was working as the Manager of Merchant Navy Club. It was therefore held that the C.R.P.2395/1999. 2 judgment debtor had adequate means to pay the decree debt and warrant was directed to be issued. 3. Learned counsel appearing for the revision petitioner pointed out that the impugned order was made by the court below without making any enquiry and simply on the basis of the execution petition filed by the decree holder. It is contended that no opportunity was given to the judgment debtor to explain the position and it was without hearing him that the impugned order was passed. 4. It is pointed out in this revision petition that 4.84 acres of land has been offered as a collateral security to a Bank for the loan availed of by the petitioner. The income derived by him as Manager was the only means of livelihood and that was a meagre amount. It is also pointed out that a suit has been instituted against him by the State Bank of India and the property is under attachment in that proceedings also. C.R.P.2395/1999. 3 Later on, his service in the Merchant Navy Club was also terminated. According to the revision petitioner, these factors could not be brought to the notice of the court below since the revision petitioner was not given an opportunity to adduce evidence. 5. There seems to be some substance in the above contention. There is nothing to indicate that either the decree holder or the judgment debtor had given any evidence regarding the means of the judgment debtor. There is nothing to indicate that the decree holder had given any evidence to show that the judgment debtor had adequate means to pay the decree debt and was deliberately avoiding payment. It is to be noticed that the judgment debtor has clearly averred that 4.84 acres of land, which persuaded the court below to hold against the judgment debtor, is infact mortgaged to a Bank. It is felt that a reconsideration of the whole issue is necessary. C.R.P.2395/1999. 4 In the result, this revision petition is allowed, the impugned order is set aside and the matter is remanded to the execution court for fresh consideration in accordance with law in the light of what has been stated above and and after giving opportunities to both parties to adduce evidence, if they so choose. Thottathil B. Radhakrishnan, Judge P. Bhavadasan, Judge sb.