IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 15TH JULY 2009 / 24TH ASHADHA 1931 CRP.No. 362 of 2004() --------------------- AGAINST THE ORDER IN EP 122/94 IN OS.11/1991 of SUB COURT, KOTTARAKKARA .................... REVN. PETITIONERS: JUDGMENT DEBTORS 1, 4, 5 AND 6. ---------------------------------------------------- 1. C.SASIKUMAR, PALAMUTTATHU VEEDU, KAKKKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 2. P.KUNJAKRISHNA PILLAI, THENGAYYATHU VEEDU, KAKKOKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 3. C.R.RAJASEKHARAN PILLAI, THENGAYATHU VEEDU, KAKKAKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 4. N.ARAVINDAKASHAN PILLAI, GIRIJALAYAM, KAKKOKOTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENTS: DECREE HOLDER AND JUDGMENT DEBTORS 2 AND 3. ---------------------------------------------------------- 1. KUMAR CHITTY FUND, REP. BY ITS MANAGING PARTNER KUMARAN HARSHA KUMAR, THEKKEDATHU VEEDU, KOLANNOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 2. R.CHANDRASEKHARA PILLAI, PALAMUTTATHU VEEDU, KAKKOKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. 3. G.CHELLAMMA AMMA, PALAMUTTATHU VEEDU, KAKKAKOTTOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK. ADV. SRI.T.MADHU FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 09/07/2009, THE COURT ON 15/07/2009 PASSED THE FOLLOWING: M.L. JOSEPH FRANCIS, J. - - - - - - - - - - - - - - - - - - - - - - C.R.P.No. 362 of 2004 - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of July, 2009 O R D E R This revision petition is filed by the judgment debtors 1, 4, 5 and 6 in E.P.No. 122 of 1994 in O.S.No. 11 of 1991 on the file of the Sub Court, Kottarakkara, against the order in that E.P. dated 19.3.2004. Respondents 1 to 3 herein are the decree holder and judgment debtors 2 and 3. 2. The facts of the case are briefly as follows. The first respondent decree holder obtained an ex parte decree against the judgment debtors for realisation of an amount of Rs.1,35,180/- with interest. The judgment debtors contended in the execution proceedings that the decree passed in the kuri transaction is null and void and is unexecutable. When the court below refused to consider that contention, the revision petitioner herein filed C.R.P.No. 613 of 2002 before this Court, which is now C.R.P.No. 362 of 2004 2 pending. As the Execution Court rejected the application filed by the first respondent/decree holder for arresting the judgment debtors, the decree holder filed C.R.P.No. 105 of 2002 before this Court, which was allowed and the matter was remanded to the Execution Court. 3. The Execution Court, as per order in E.P. 122 of 1994 dated 19.3.2004 found that the judgment debtors 1, 4, 5 and 6 have means to pay the decree debt and issued warrant against them. Against that order the judgment debtors 1, 4, 5 and 6 filed this revision petition. 4. Heard the learned counsel for the petitioners and the learned counsel for the first respondent. 5. As per the order in E.P. 122 of 1994 in O.S.No. 11 of 1991 on the file of the Sub Court, Kottarakkara dated 16.10.2001, the execution court found that the judgment debtors 1, 4, 5 and 6 are not liable to be arrested, as the decree holder failed to prove their means and the prayer for C.R.P.No. 362 of 2004 3 arrest and detention of the judgment debtors is rejected. Against that order, the decree holder filed C.R.P.No. 105 of 2002 before this Court. This Court, as per order dated 3.6.2003, set aside that order and the case was remanded back to the lower court for fresh consideration after giving the parties opportunity to adduce evidence. After the remand, no further evidence was adduced from both sides. 6. The lower court, as per order in E.P. 122 of 1994 dated 19.3.2004, found that the judgment debtors 1,4, 5 and 6 have means and they are wilfully defaulting in discharging the decree debt and warrant was ordered against them. 7. Section 51 of the C.P.C. lays down the modes of execution of a decree. Proviso to Section 51 lays down that where the decree is for payment of money, execution by detention in the prison shall not be ordered unless the court is satisfied that the judgment debtor has or has had C.R.P.No. 362 of 2004 4 since the date of the decree the means to pay the amount of decree or some substantial part thereof and refused or neglected or has refused or neglected to pay the same. The learned counsel for the revision petitioners submits that the revision petitioners have retired from government service and that they have no means to pay the decree debt and there is no wilful laches or negligence on their part to pay the decree debt. An ex parte decree was passed in 1994 and after the passing of the decree no amount was paid by the judgment debtors. It is true that the judgment debtors have retired from government service. But they were in government service at the time of passing of the decree and therefore it can be inferred that they purposefully avoided the payment. 8. As already mentioned, under proviso (b) to Section 51 C.P.C., if the judgment debtor has or has had since the date of the decree means to pay the amount of C.R.P.No. 362 of 2004 5 decree or some substantial part thereof, and refused or neglected or has refused or neglected to pay the same, arrest and detention is permissible. The decree holder has given evidence as PW1 that the judgment debtors are government servants and are drawing good salaries and they are possessing landed properties and getting substantial income from that property. No contra evidence had been adduced on the side of them to show that they have no means. 8. Therefore, the learned Sub Judge is fully justified in finding that the judgment debtors have sufficient means and they wilfully defaulted in discharging the decree debt and the personal execution sought for by detention in civil prison is allowed. Therefore, this revision petition is liable to be dismissed, as it is without any merit. C.R.P.No. 362 of 2004 6 10. This revision petition is accordingly dismissed. The Execution Court can proceed with the execution in accordance with law. (M.L. JOSEPH FRANCIS) Judge tm