IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 27TH JULY 2010 / 5TH SRAVANA 1932 CRP.No. 393 of 2010() --------------------- AGAINST THE ORDER IN EP 39/1998 IN OS.2/1992 of SUB COURT,KOTTARAKKARA .................... PETITIONER/RESPONDENT/JUDGMENT DEBTOR(DEFENDANT): ---------------------------------------------------------------------- T.G.THOMAS, THEKKEDATHU, KIZHAKKE VEETTIL, ULIYANADU, VETTIKKAVALA VILLAGE, KOTTARAKARA TALUK. BY ADV. SRI.PHILIP ANTONY CHACKO SRI.P.M.SEBASTIAN RESPONDENT/PETITIONER/DECREE HOLDER (PLAINTIFF): ---------------------------------------------------- K.ALEXANDER VAIDYAN, KADUVATHOTTATHIL VEEDU, KIZHAKKETHERUVU, AYAPPALLOOR MURI, MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 27/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.393 of 2010 --------------------------------------- Dated this 27th day of July, 2010 ORDER This revision arises from the order dated 08-07-2010 in E.P.No.39 of 1998 in O.S.No.2 of 1992 of the court of learned Sub Judge, Kottarakkara. Vide the impugned order learned Sub Judge found that in spite of having means petitioner has neglected and refused to pay decree amount to the respondent. Learned counsel for petitioner contends that the order is unsustainable in that there is absolutely no evidence to show that petitioner is possessed of any means to discharge the liability. It is also contended by learned counsel that executing court has referred to irrelevant materials in entering a finding against petitioner. A further argument is that even the plaint averments would show that claim made in the plaint was hopelessly barred by limitation and it was without taking that into account that the ex parte decree was passed which petitioner intends to challenge before the Supreme Court. 2. Now there is a decree in force, may be ex parte. The limited question for decision in this proceeding is whether executing court is justified in issuing warrant of arrest to the C.R.P.No.393 of 2010 : 2 : petitioner on a finding that in spite of having means he has refused or neglected to pay the amount. Section 51(b) of the Code of Civil Procedure (for short, “the Code”) requires that to issue warrant of arrest it must be shown that judgment debtor has, or has had since the date of the decree, “the means to pay” the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the decree debt. Necessarily initial burden of proving 'means' is on the decree holder and once means is proved, if the judgment debtor has no acceptable explanation as to why in spite of having means he has not been paid the amount it is open to the court to infer refusal or neglect on the part of judgment debtor. Therefore primary responsibility of the respondent/decree holder is to prove that petitioner has means or has had means since passing of the decree. 3. This case has a chequered course in the executing court. Initially when there was a request for personal execution against petitioner executing court refused that holding that petitioner has no means. Respondent challenged that order in this court in C.R.P.No.1762 of 1996. The C.R.P was dismissed vide order dated 08-04-1997 (Annexure-A is copy of that order) C.R.P.No.393 of 2010 : 3 : but, observing that respondent will be entitled to file fresh application for arrest and detention of petitioner in case he is able to establish that petitioner is possessed of sufficient means. In the meantime, respondent attempted to realise the amount by attachment and sale of share of petitioner in the immovable property and filed E.A.No.183 of 2001 for the said purpose. There was conditional attachment issued by the executing court. The wife and children of petitioner made a claim over that property and requested to lift the attachment vide E.A.No.219 of 2003. Executing court allowed the claim to the extent it related to the land but the claim to the extent it related to the building thereon was disallowed. Claimants challenged that order in Ex.F.A. No. 30 of 2005 while that part of the order which went against the respondent was challenged by him by way of a cross appeal. This court as per Annexure-D, judgment set aside the order passed by executing court and remitted the matter to the executing court for fresh decision. After remand executing court allowed the claim in toto vide Annexure-E, order making some observation against conduct of petitioner in refusing to pay the amount due to the respondent. In E.P.No.39 of 1998 respondent again filed application for personal execution against petitioner C.R.P.No.393 of 2010 : 4 : (the affidavit is Annexure-F) stating that petitioner is occupied as a building contractor and is earning more than Rs.10,000/- per month. He also stated that to avoid payment of decree amount petitioner has transferred his properties in favour of his wife and children. According to the respondent, petitioner has liquid cash in his custody sufficient to discharge the liability but he is wilfully not paying the amount. That application was resisted by petitioner by Annexure-G, counter statement where he denied the allegation including that he is occupied as a building contractor. Respondent gave evidence as PW1 and testified to his case. He asserted that petitioner is engaged as a building contractor earning more than Rs.10,000/- per month. Contra evidence is given by petitioner as DW1. Executing court considered the oral evidence let in by the parties and accepted version of respondent as PW1 which according to the executing court is corroborated by other materials on record and issued warrant of arrest against petitioner. That order is under challenge in this revision. 4. It is contended by learned counsel that observations made by the executing court concerning means of petitioner are not correct. Executing court referred to evidence of the father- in-law of petitioner as PW3 in E.A.No.219 of 2003 (claim petition C.R.P.No.393 of 2010 : 5 : filed by wife and children of petitioner against the attachment of property) that petitioner is engaged as a contractor for scaffolding work for the construction of concrete buildings. He also stated that in the property which the father of petitioner transferred in favour of wife and children of the latter (after the institution of the present suit) petitioner constructed the building spending about Rupees Three Lakhs. The executing court also observed that evidence of petitioner as DW1 indicates that it is not as if he is not possessed of means and hence is unable to pay, but he is obstinate not to pay the amount. Executing court has referred to an answer given by petitioner as DW1 in the following manner; “I am not obliged to pay any amount, nor will I pay any amount”. Learned counsel for petitioner contends that the said statement of petitioner cannot be taken as indicating that he is possessed of means but he is not prepared to pay the amount. According to the learned counsel that statement was made in answer to a composite question put by the counsel for respondent. It is pointed out by learned counsel that PW3 in E.A.No.219 of 2003 had clarified in his evidence that his statement concerned his son, Thomas. C.R.P.No.393 of 2010 : 6 : 5. Kuppuswamy Vs. P. G. Menon (1992(2) KLT 203) has laid down the guidelines for deciding means of judgment debtor. It is held that initial burden of proving the circumstances showing means of judgment debtor is on the decree holder and that strict proof of every details (given by the decree holder) is not necessary. It is sufficient that decree holder gives some indication or details of properties or assets of judgment debtor. It is competent to the executing court, on the materials placed before it, to draw an inference as regards requirements of Section 51 of the Code. Question whether there are circumstances justifying an order for arrest is one of fact. Requirement of Section 51 of the Code will be satisfied if judgment debtor has means to pay the debt either from liquid resources or assets belonging to him which can reasonably furnish such resources. I must also bear in mind that Section 51(b) of the Code does not say that judgment debtor should have landed properties in his custody to hold that he has means. What the section requires is that judgment debtor should have “the means” to pay the whole or any portion of the decree amount. It is true that petitioner as DW1 has denied that he has any means. He denied that he is occupied as a contractor for scaffolding C.R.P.No.393 of 2010 : 7 : work in construction of concrete buildings. But respondent has given evidence as PW1 in that line. The question is whether that evidence of respondent can be preferred to the denial of petitioner as DW1. In deciding that, executing court made reference to the evidence (of PW3 in E.P.No.219 of 2003). Even if it is assumed that PW3 has given a clarification that his statement concerned his son, Thomas (about occupation as contractor) question arises whether that explanation of PW3 in E.P.No.219 of 2003 can still be accepted on its face value in the light of the assertion made by PW1 that petitioner is engaged in scaffolding work. It is also difficult to think that in so far as there is no case or evidence that he is otherwise incapacitated to do any work petitioner aged about 57 years and has wife and children is keeping idle throughout. This must be read along with the statement of PW3 in E.P.No.219 of 2003 that petitioner constructed building in the attached property spending about Rupees Three Lakhs (after institution of the suit). In these circumstances stand of petitioner as DW1 that “I am not obliged to pay any amount, nor will I pay any amount” assumes importance. It is on the basis of above materials that executing court accepted evidence of respondent as PW1 and found that C.R.P.No.393 of 2010 : 8 : petitioner has the means. There is no other acceptable explanation offered by petitioner for not discharging the liability under the decree. It follows that there was neglect and refusal on the part of petitioner in paying the amount due under the decree. 6. That petitioner has means is a finding of fact. Revisional court need interfere only when the finding is perverse or illegal. Having regard to the materials on record I am persuaded to think that finding of executing court regarding means is either perverse or illegal so that this court is required to exercise its revisional jurisdiction against that finding of fact and the consequent order. I find no reason to interfere. However, having regard to the facts and circumstances of the case and also taking into account the amount involved I am inclined to give petitioner sometime to discharge the liability. Resultantly this revision petition is dismissed, but petitioner is granted two months' time from this day to discharge liability due under the decree. Warrant of arrest issued against petitioner shall remain in abeyance during the said period of two months. In case the decree amount is not paid within the said period of two months, it will be open to the executing court to C.R.P.No.393 of 2010 : 9 : proceed further pursuant to the order under challenge without any further enquiry regarding means of petitioner. In case petitioner is desirous of seeking any installment facility for payment of the amount it is open to him to make a request in the executing court in that line within three weeks from this day and if any such request is made executing court shall decide on that request after hearing counsel for respondent also. (THOMAS P JOSEPH, JUDGE) Sbna/-