IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 CRP.No. 1395 of 2004() ---------------------- AGAINST THE ORDER DATED 19/10/2004 IN EP 126 2003 IN OS.1301/2001 of PRL.M.C.,IRINJALAKUDA .................... REVN. PETITIONER: 3RD JUDGMENT DEBTOR ------------------------------------- AUGUSTINE S/O. KOOLA LONAPPAN, POTTA DESOM, PERAMBRA VILLAGE. BY ADVS. SRI.T.N.MANOJ SRI.DINESH R.SHENOY RESPONDENT: DECREE HOLDER -------------------------- ABHIMAN KURIES (P) LTD., IRINJALAKUDA. BY ADVS. SRI.JOHN T. SEBASTIAN SRI.A.M.BABU THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER IN I.A. NO. 3649 OF 2004 IN C.R.P. NO. 1395 OF 2004. DISMISSED 11.6.2008 Sd/-(HARUN-UL-RASHID, JUDGE)B HARUN-UL-RASHID, J. -------------------------------------------- C.R.P. NO. 1395 OF 2004 -------------------------------------------- Dated this the 11th day of June, 2008 O R D E R The third judgment debtor in E.P. No.126 of 2003 in O.S. No.1301 of 2001 on the file of the Principal Munsiff's Court, Irinjalakuda is the revision petitioner. The execution petition was filed by the decree holder seeking steps against judgment debtors 2 and 3 stating that they are having the means to pay the decree amount, but are neglecting to make the payment. Judgment debtors 2 and 3 contended before the execution court that they have no means to pay the decree debt. The parties tendered oral evidence. It has come out in evidence that the revision petitioner who was an employee in Apollo Tyres sustained crush injury on his left hand and he voluntarily retired from service during the year 2001. He tendered evidence to the effect that he has no job or any source of income to satisfy the decree amount. 2. The date of decree is 17.10.2002 and the execution petition was filed on 29.1.2003. The revision petitioner voluntarily retired from service C.R.P. NO.1395/2004 2 on 23.5.2001 and he was examined on 9.8.2004. Learned counsel appearing for the revision petitioner submitted that the court below ought to have enquired whether the revision petitioner/third judgment debtor had the means to pay off the decree debt since the date of the decree and thereafter. There is no material to come to the conclusion that the revision petitioner had the means to pay off the decree amount since the date of the decree or thereafter . According to him, the order under challenge is illegal. 3. The facts and circumstances discussed above prima facie show that the revision petitioner is not engaged in any job after his retirement from service. Whether the revision petitioner has got sufficient means to pay off the decree amount and whether he is deliberately withholding payment are questions to be considered by the execution court. The enquiry in this case was not conducted in the proper direction. The court below finding that the revision petitioner voluntarily retired from service in the year 2001 concluded that he had sufficient money which he received at the time of retirement. The fact is that the revision petitioner retired in the year 2001, the execution petition was filed in 2003 and he was examined by the court below in the year 2004. The evidence adduced by the parties does not indicate that the revision petitioner had sufficient C.R.P. NO.1395/2004 3 means since the date of the decree. In the above circumstances, the impugned order is set aside and the execution court is directed to consider the matter afresh and take a decision in accordance with the observations made above. The execution court shall pass orders within a period of six months from the date of receipt of a copy of this order. The parties are at liberty to adduce further evidence, if any. The Civil Revision Petition is disposed of as above. There will be no order as to costs. (HARUN-UL-RASHID, JUDGE) sp/ C.R.P. NO.1395/2004 4 HAURN-UL-RASHID, J. C.R.P. NO. 1395/2004 O R D E R 11th June, 2008