IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 22ND FEBRUARY 2008 / 3RD PHALGUNA 1929 CRP.No. 1414 of 2004 AGAINST THE ORDER DATED 25/09/2004 IN EP.3/04 IN OS.NO.223/1999 OF MUNSIFF'S COURT, KATTAPPANA REVN. PETITIONER: JUDGEMENT DEBTOR: ----------------------------------- K.K.BAIJU, AGED 36, S/O. LATE K.G.KOSHY, KOLLAMVELLIL HOUSE, THEJUS STATIONERIES, THANNIMOODE ROAD, NEDUMKANDAM KARA, KALKOONTHAL VILLAGE. BY ADV. SRI.K.M.KURIAN SRI.P.VIJAYAKUMAR RESPONDENT: DECREE HOLDER; --------------------------- A.N.MADHAVAN PILLAI, AGED 62, S/O. M.K.NARAYANAN PILAI, ATHIRA BHAVAN, NEDUMKANDAM KARA, KALKOONTHAL VILLAGE. BY ADV. SRI.S.K.MURALEEDHARA KAIMAL SRI.B.RAJESH THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22/02/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: I.A.NO.3690/2004 IN C.R.P.NO.1414/2004 DISMISSED 22/2/2008 SD/- K.T.SANKARAN, JUDGE //TRUE COPY// AHZ K.T.SANKARAN, J. -------------------------------------------- C.R.P. NO. 1414 OF 2004 D -------------------------------------------- Dated this the 22nd February, 2008 O R D E R Petitioner is the judgment debtor in E.P.No.3 of 2004 in O.S.No.223 of 1999, on the file of the Munsiff's Court, Kattapana. A sum of Rs.72,449/- was sought to be realised from the petitioner. The prayer in the Execution Petition is for arrest and detention of the petitioner in civil prison. 2. The petitioner pleaded no means. It was contended that he is a coolie According to the decree holder, the petitioner is running business and that he gets Rs.60,000/- per year as income from the business. Before the court below, oral evidence was adduced, though the appendix of the certified copy of the order does not indicate that any evidence was adduced. 3. The court below by a cryptic order held that the judgment debtor has got sufficient means to repay the decree debt. It was also held that even if the petitioner is a coolie, it cannot be said that he is having no means. With these two sentences the court below overruled the objections raised by the petitioner. There is no finding that the petitioner C.R.P. NO.1414 OF 2004 :: 2 :: has refused or neglected to pay the decree debt in spite of having the means to pay the decree debt or a substantial portion thereof. Such a finding is absolutely essential while disposing of the Execution Petition for the arrest and detention of the judgment debtor in civil prison, in view of clause (b) of the proviso to Section 51 of the Code of Civil Procedure. The court below has not considered and discussed the oral and documentary evidence available in the case. The revisional court would not be in a position to assess the situation and decide whether the view taken by the court below on the merits would be justified or not, as the court below has not stated any reason for arriving at the conclusion. The order passed by the court below is illegal and unsustainable warranting interference under Section 115 of the Code of Civil Procedure. For the aforesaid reasons, the order impugned is set aside. The executing court shall dispose of the Execution Petition afresh after affording an opportunity of being heard to both the parties. No order as to costs. (K.T.SANKARAN) Judge ahz/