IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 OP(C).No. 1875 of 2011(O) -------------------------------- AGAINST THE ORDER DATED 03/01/2011 IN EP 205/2009 IN OS.5/2000 of SUB COURT, MUVATTUPUZHA .................... PETITIONER --------------- V.A.DEVASSIA,S/O.ABRAHAM,VELAMAKUDY HOUSE, ANGADI KARA,KOTHAMANGALAM,PIN-686691. BY ADVS. SRI.SREELAL N.WARRIER SRI.B.RAGHUNANDANAN SRI.C.DILIP RESPONDENT(S): -------------------- SALOMY,D/O.JOY,PARACKAL HOUSE, KUROOR KARA,KOTHAMANGALAM,PIN-686691. R1 BY ADV. SRI.MANOJ P.KUNJACHAN THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 1875/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF EXECUTION PETITION NO.205/09 DATED 15/07/2009 IN O.S.NO.5/2000 OF SUB COURT, MUVATTUPUZHA. P2: COPY OF OBJECTION DATED 11/12/2009 IN E.P. NO.205/2009 IN O.S. NO.5/2000 OF SUB COURT, MUVATTUPUZHA. P3: COPY OF RATION CARD OF THE PETITIONER. P4: COPY OF SALE DEED NO.1239/1990 DATED 21/03/1990 OF SRO, KOTHAMANGALAM. P5: COPY OF ORDER DATED 03/01/2011 OF SUB COURT, MUVATTUPUZHA IN E.P.NO.205/2009 IN O.S. NO.5/2000. RESPONDENT'S EXHIBITS:NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.1875 of 2011 -------------------------------------- Dated this the 29th day of July, 2011. JUDGMENT Judgment debtor in E.P.No.205 of 2009 in O.S.No.5 of 2000 of the court of learned Sub Judge, Muvattupuzha is the petitioner before me. Respondent obtained a decree for recovery of money against him and put the decree in execution. Respondent wanted personal execution as well as execution against property of the petitioner. Respondent alleged that petitioner has sufficient means and wanted the property belonging to him – three cents and a residential building thereon to be put to sale for realisation of the decree amount. Petitioner contended that he has no means and that he is a labourer by occupation. The only land belonging to him is the three cents and a residential building thereon. It is exempted from attachment and sale under Section 60(c) of the Code of Civil Procedure (for short, “the Code”). Both sides adduced evidence in support of their respective pleadings. Executing court upheld the plea of petitioner regarding no means but allowed the respondent to proceed against property of petitioner rejecting his contention that he is a labourer entitled to protection under Section 60(c) of the Code. The said order to the extent that executing court permitted respondent to proceed against property of petitioner is under challenge. OP(C) No.1875/2011 2 2. Learned counsel for petitioner contends that Exts.P3 and P4 (marked in the executing court as well) itself would show that petitioner is a labourer by occupation and that the only land belonging to him is the three cents and the residential building situated thereon. Learned counsel invited my attention to Ext.P4, copy of title deed of petitioner where the property (now being brought to sale) is described as three cents and a cudjan thatched house situated thereon. It is the grievance of petitioner that the executing court has only referred to the oral evidence of parties and no reference is made to Exts.P3 and P4. 3. Learned counsel for respondent would contend that petitioner has two residential buildings of which one is let out and hence plea of petitioner for protection under Section 60(c) of the Code cannot be allowed. 4. It is noticed from the order under challenge, to the extent it went against petitioner that executing court has not referred to Exts.P3 and P4. At the same time it is seen that though respondent has a contention that petitioner has two buildings, no attempt was made by the respondent to prove the same, if necessary by taking out a commission from executing court or by producing necessary assessment extract from the local authority. OP(C) No.1875/2011 3 5. In the nature of contention that parties have raised regarding execution against property of petitioner I am inclined to think that parties must be given opportunity to agitate the matter further, giving both sides opportunity to adduce further evidence. 6. However, so far as the finding of executing court regarding personal execution is concerned there is no challenge to that part of order before me and hence it is not necessary for me to go into that question in this proceeding. Resultantly this Original Petition is allowed and Ext.P5, order dated January 3, 2011 in E.P.No.205 of 2009 in O.S.No.5 of 2000 of the court of learned Sub Judge, Muvattupuzha to the extent it permitted execution against property of petitioner is set aside and that matter (alone) is remitted to the executing court for fresh decision after giving both sides opportunity to adduce further evidence in that matter. Executing court is directed to expedite its proceedings. THOMAS P.JOSEPH, Judge. cks