IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 CRP.No. 2888 of 2001 AGAINST THE ORDER DATED 24.8.2001 IN E.P.NO.82/2000 IN OS.NO.203/1999 OF THE MUNSIFF'S COURT, PALA REVN. PETITIONER: PETITIONER: DECREE HOLDER: ------------------ THE PERINGOTTUKARA FINANCE AND INVESTMENT COMPANY LIMITED, REPRESENTED BY ITS PALA BRANCH MANAGER. BY ADV. SRI.P.C.HARIDAS RESPONDENTS: RESPONDENTS: JUDGMENT DEBTORS: ------------- 1. JIMMY JOSEPH, S/O.JOSEPH, MAMMOOTTIL, LALAM VILLAGE, PARAPPALLY KARA, MEENACHIL TALUK. 2. BIJUMON M.N., S/O.K.K.NARAYNAN, PULLATTU HOUSE, LALAM VILLAGE, PARAPPALLY KARA, MEENACHIL TALUK. BY ADV. SRI.S.PRASANTH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 2888 OF 2001 -------------------------------------------- Dated this the 8th April, 2008 O R D E R The petitioner, decree holder in O.S.No.203 of 1999 on the file of the Munsiff's Court, Pala, filed E.P.No.82 of 2000 for execution of the money decree by arrest and detention of the judgment debtors. There are three judgment debtors. Execution Petition against the third judgment debtor was withdrawn later. 2. The decree holder contended that the first judgment debtor has got family property and that he has rented out a building, from which he gets Rs.3,000/- per month. It was also contended that the second judgment debtor is an advocate's clerk. The decree holder adduced oral evidence as PW1. The plea raised by the judgment debtors was that they have no means to pay the decree debt. No evidence was adduced by the respondents/judgment debtors. The court below held that the decree holder did not prove “by producing documents and other convincing evidence” that the judgment debtors have properties or that the second judgment debtor is working as an advocate's clerk. Accordingly, the Execution Petition was dismissed. 3. Learned counsel for the petitioner submitted that the Execution C.R.P. NO. 2888 OF 2001 :: 2 :: Petition was filed in 2000 and the judgment debtors filed the counter statement after seeking several adjournments. The judgment debtors were declared exparte on 7.4.2000, since they failed to file the objections. Later, the exparte order was set aside and the objections were filed only on 1.1.2001. The learned counsel also contended that the court below should have accepted the evidence of PW1 and should not have insisted on production of documents to prove the means of the judgment debtors. The learned counsel for the respondents supported the order passed by the court below. He contended that there is no evidence in the case to prove the means of the judgment debtors and that the burden of proof entirely lies on the decree holder to prove the means of the judgment debtors. 4. On a perusal of the Execution Petition, the affidavit filed in support of the same and the evidence adduced in the case, copy of which were made available to me by the counsel, and also taking into account the facts and circumstances of the case, I am of the view that this is a fit case where the decree holder can be granted an opportunity to prove the means of the judgment debtors. The age of the judgment debtors is shown as 37 years and 29 years respectively in the Execution Petition. It is contended that the second judgment debtor is an advocate's clerk. If so, the decree holder will be able to produce reliable evidence to prove C.R.P. NO. 2888 OF 2001 :: 3 :: the same. So also, the means of the first judgment debtor can be proved by acceptable evidence. I am of the view that it is only just that an opportunity be granted to the decree holder to prove the means of the judgment debtors, provided the decree holder pays a sum of Rs.1,000/- as costs to the respondents/judgment debtors to compensate the inconvenience caused to them. For the reasons stated above, the Civil Revision Petition is allowed, the order impugned is set aside and the Execution Petition is remanded to the court below for fresh disposal, on condition that the petitioner/decree holder shall pay or deposit for payment to the respondents a sum of Rs.1,000/- as costs on or before 30.5.2008. If the decree holder fails to deposit the costs, the order impugned shall revive and the Civil Revision Petition will stand dismissed. If the decree holder complies with the orders to pay costs, the court below shall afford an opportunity to both parties to adduce evidence. The court below shall dispose of the Execution Petition on merits as expeditiously as possible. (K.T.SANKARAN) Judge ahz/ K.T.SANKARAN, J. ------------------------------------------- ------------------------------------------- C.R.P.NO. 2888 OF 2001 O R D E R 8th April, 2008 -------------------------------------------