IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 CRP.No. 248 of 2009() --------------------- AGAINST THE ORDER DATED 24/01/2009 IN EP 3/2005 IN OS.526/1994 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER(S): 2ND JUDGMENT DEBTOR: -------------------------------------------------------------- V.D.MATHEW, S/O.DEVASSIA, THARAPPEL, VATTUKULAM P.O., KADAPPOORKARA. BY ADVS. MR.PIRAPPANCODE V.S.SUDHIR, MR.SAJU JOHN. RESPONDENT(S): DECREE HOLDER & IST JUDGMENT DEBTOR: ------------------------------------------------------------------------------------------------ 1. THE CATHOLIC SYRIAN BANK LTD., KANAKKARI BRANCH, REPRESENTED BY ITS MANAGER. 2. MOLYKUTTY THOMAS, W/O.JOSE, THANNIKKAPPARA HOUSE, POOVATHODE P.O., KANJIRATHANAMKARA, POOVARANI VILLAGE. R1 BY ADV.MR.SAIGI JACOB PALATTY R2 BY ADV.MR.M.M.ALIAS. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.248 OF 2009 -------------------------- Dated this the 8th day of October 2009 ------------------------------------- ORDER The second judgment debtor in E.P No.3 of 2005 in O.S No.526 of 1994 on the file of the Additional Sub Court, Kottayam has filed this revision challenging the order passed by the learned Sub Judge directing issue of warrant against him for realisation of the decree debt. The first respondent bank, after getting a decree for money against the above judgment debtor and his daughter, who as the principal debtor availed a loan but defaulted in payment, proceeded with execution. In the execution proceedings, the petitioner, second judgment debtor, resisted the execution contending that he has no means. An officer of the bank was examined as PW1 to show that the second judgment debtor is possessed of C.R.P.No.248 OF 2009 Page numbers sufficient means including ownership over immovable property. Production of tax receipts by the petitioners at the time of availing the loan by his daughter, as a coobligant to the loan, was banked upon to show that he has ownership to nearly four acres of land. The second judgment debtor examined as DW1 in the enquiry over the plea of no means raised, gave evidence that he had given his entire property under a partition deed to his children. The execution court placing reliance on the tax receipts tendered earlier concluded that the second judgment debtor is possessed of sufficient means to pay the decree debt and accordingly ordered for issuing warrant for his arrest and detention in Civil Prison. That order is challenged in the revision. 2. I heard the counsel on both sides. The judgment debtor is aged 87 years and no specific finding is entered by the execution court C.R.P.No.248 OF 2009 Page numbers to negative his plea of no means, and so much so, the order passed directing his arrest is unsustainable under law is the submission of his counsel. On the other hand, the learned counsel for the decree holder bank contended that the tax receipts produced clearly spell out his ownership over large extent of land. Absence of production of any document to show the diversing of the property as contended by the judgment debtor is also highlighted by the counsel to sustain the impugned order. 3. Perusing the order impugned, I find that the execution court has not gone into the question whether the judgment debtor had removed or disposed any part of his property after the institution of the suit. Only based on the production of the tax receipts by the judgment debtor at the time when loan was availed by his daughter it was concluded that he is possessed of sufficient means to proceed against him by arrest C.R.P.No.248 OF 2009 Page numbers and detention, to compel him to satisfy the decree debt. Section 51(A)(2) of the Code of Civil Procedure spells out that the transfer or disposal of the property by the judgment debtor to obstruct or delay the execution of decree must be proved to have been made after the institution of the suit. So much so burden was cast upon the decree holder bank to prove that the judgment debtor is still possessed of the immovable property or the removal or transfer, if any, made by him was after the institution of the suit to defeat or delay the satisfaction of the decree. Even at the time when the execution was taken by virtue of transfer, he is not possessed of any immovable property would not by itself enure to the assistance of the judgment debtor if the decree holder can show such transfer was after the institution of the suit to defeat or obstruct or delay the execution of the decree. Setting aside the impugned order, I direct the court below to examine the question afresh and C.R.P.No.248 OF 2009 Page numbers pass orders on the plea of no means canvassed by the judgment debtor in accordance with law. The decree holder as well as the judgment debtor shall be given further opportunity to lead evidence in such enquiry. The execution court shall complete the enquiry and pass appropriate orders within one month from the date of receipt of a copy of this order. Petition is disposed as indicated above. Send a copy of the judgment to the court concerned forthwith. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv