IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 31ST MARCH 2008 / 11TH CHAITHRA 1930 CRP.No. 61 of 2004 AGAINST THE ORDER DATED 31/07/2003 IN EP.NO.112/2001 IN OS.NO.8/1995 OF THE PRINCIPAL SUB COURT,ATTINGAL REVN. PETITIONER: DECREE HOLDER/PLAINTIFF. ------------------------------------------ RAVEENDRAN, S/O.NARAYANAN, MANJUSHA, T.B.JUNCTION, ATTINGAL. BY ADV. SRI.M.BALAGOVINDAN SRI.P.M.JOSEPH RESPONDENT: JUDGMENT DEBTOR/DEFENDANT. --------------------------------------- GIREESH KUMAR, SIVA BADRA BHAVAN, KADAKKAVOOR DESOM AND KADAKKAVOOR VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.K.ANAND SRI.M.ANILKUMAR SRI.A.ANOOP THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/03/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 61 OF 2004 C -------------------------------------------- Dated this the 31st March, 2008 O R D E R The decree holder in O.S.No.8 of 1995, on the file of the Sub Court, Attingal, challenges the order dated 31.7.2003 in E.P.No.112 of 2001, by which the prayer for arrest and detention of the judgment debtor in civil prison was rejected by the court below holding that the decree holder has failed to prove that the judgment debtor has the means to pay the decree debt. 2. The decree was passed on 25.8.1997. The amount sought to be realised in the Execution Petition is Rs.2,38,676/-. According to the decree holder, the judgment debtor is working as a representative in a company and he gets Rs.10,000/- per month. It is also the case of the decree holder that the judgment debtor runs a travel agency and he gets Rs.5,000/- from that business. 3. The judgment debtor contended that he has no means to pay the decree debt. It is stated that he is working as a salesman in his brother's shop and that he gets Rs.1,200/- per month. He has to maintain his wife, son and mother. 4. The court below dismissed the Execution Petition on the ground that in cross examination the decree holder stated that he does not know the name of the company in which the judgment debtor is working and that he does not know the details of the travel agency allegedly run by the judgment debtor. Holding C.R.P. NO.61 OF 2004 :: 2 :: that “nothing is brought out from the evidence of PW1 and RW1 to prove the means of the judgment debtor”, the court below dismissed the Execution Petition. The suggestion made by the judgment debtor to PW1 in his cross examination is that the judgment debtor is working in a stationery shop and that he gets Rs.500/- per month as salary. But, in the chief examination, the judgment debtor stated that he is employed in the stationery shop of his brother and that he gets Rs.1,200/- per month. From the suggestion in the cross examination and the evidence of the judgment debtor in the chief examination, it is clear that the judgment debtor has not stated the true facts. It is true that there is no clinching evidence to establish that the judgment debtor is a representative in a particular company and that he runs a travel agency business. The judgment debtor has denied the case of the decree holder on this aspect. It is for the decree holder to prove that the judgment debtor has the means to pay the decree debt or he has had sufficient means to pay the decree debt since the date of the decree and he refused and neglected to pay. In the cross examination of RW1, he stated that he was in Gulf before seven or eight years and that he came back to India. It is stated by the decree holder in evidence that the father of the judgment debtor was having landed properties and the judgment debtor has inherited the same under a Will executed by his father. The Will was not caused to be produced in the case and not even a registration copy was produced. 5. It is clear from the records that the parties did not take the case seriously in the matter of adducing evidence. The evidence is cryptic. There C.R.P. NO.61 OF 2004 :: 3 :: was no effective cross examination of the witnesses and the relevant materials and data were not produced by both the parties. In the facts and circumstances of the case, I am of the view that it is only just and reasonable to afford an opportunity to the decree holder to prove that the judgment debtor has the means to pay the decree debt or some substantial part thereof or has had the necessary means since the date of the decree and that he has refused and neglected to pay the decree debt. For the aforesaid reasons, the Civil Revision Petition is allowed, the order passed by the court below is set aside and the matter is remanded to the executing court for fresh disposal. Both the parties shall be entitled to adduce such other evidence as they wish to adduce and to produce necessary documents. The executing court shall consider all the relevant aspects as brought out in evidence and dispose of the matter afresh. No order as to costs. (K.T.SANKARAN) Judge ahz/