IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 28TH OCTOBER 2009 / 6TH KARTHIKA 1931 CRP.No. 487 of 2009() ---------------------------------- AGAINST THE ORDER DATED 06/08/2009 IN EP 238/08 IN OS.537/2001 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER(S): JUDGMENT DEBTOR ------------------------------------ R.RAVEENDRANATH, S/O. PARAMESWARAN PILLAI, VARATHU HOUSE, NOW RESIDING AT KAIVALLYA, PERUMPOTTAYIL ROAD, ELAMAKKARA, KOCHI-26. BY ADV. MR.C.P.RAVIKUMAR RESPONDENT(S): RESPONDENT ------------------------- A.N.KRISHNANKUTTY MENON, S/O. LATE NARAYANAN MENON, HOUSE NO.34/1800, KRISHNA BUILDING, EDAPPALLY P.O., KOCHI-24, REPRESENTED BY HIS P/A HOLDER K.V.THULASIDAS, S/O. AMMALU AMMA, RESIDING AT KRISHNA BUILDING, NEAR CHANGAMPUZHA PARK, EDAPPALLY, KOCHI-682 024. R1 BT ADVS. MR.K.P.RAJEEVAN, MR.P.V.KURIACHAN. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 28/10/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss S.S.SATHEESACHANDRAN, J. ----------------------------- C.R.P.No.487 OF 2009 -------------------------- Dated this the 28th day of October 2009 ------------------------------------- ORDER Revision is directed against the order dated 06/08/2009 in E.P No.238 of 2008 in O.S No.537 of 2001 on the file of the Sub Court, Ernakulam. Petitioner is the judgment debtor. Decree executed in the above suit was one for money, and the respondent, the decree holder. Resisting the execution, the judgment debtor raised a plea of no means. The court below negatived the plea of no means canvassed by the judgment debtor, directing for issue of warrant against him. 2. I heard the counsel on both sides. The materials tendered in the enquiry have not been properly appreciated and no definite finding has been entered by the court before ordering warrant C.R.P.No.487 OF 2009 Page numbers against the judgment debtor negativing his plea of no means, is the submission of the learned counsel. On the other hand, the learned counsel for the decree holder submits that the power of attorney of the decree holder and also the judgment debtor were examined in the enquiry and the evidence let in clearly demonstrate that the plea of no means canvassed by the judgment debtor is devoid of any merit. Perusing the impugned order, I find there is absolutely no reference to the materials tendered nor its appreciation. Judgment debtor is an Ex-Service man and he lives in a pallacious building, he has not paid a single paise after passing of the decree to discharge the decree debt etc. are the observations made by the court below to repel the plea of no means canvassed by him. I find the plea of no means raised by the judgment debtor has not been considered and appreciated by the court below with reference to proviso to the C.R.P.No.487 OF 2009 Page numbers Section 51 of the Code of Civil Procedure before ordering warrant against the judgment debtor negativing the plea of no means. The court has to enter a definite finding whether the judgment debtor has the means. It need not be the means to pay the entire decree debt, but capacity to pay even a part of the decree debt. The decree holder could have produced details of the pension received by the petitioner as Ex-Service man even if it were not possible for them to produce the particulars of the income which he is stated to be getting from conducting business. Means contemplated as already indicated is not the capacity to pay the whole of the decree debt. Since the court below has not adverted to the materials tendered in the enquiry and further no specific finding has been entered as to whether the judgment debtor has the means, the impugned order cannot be sustained. Setting aside the order, I direct the court below to consider the C.R.P.No.487 OF 2009 Page numbers matter afresh and pass appropriate orders in accordance with law. It is open to both parties to produce further materials, if any, to substantiate their respective case. Court below is directed to dispose the matter, at any rate, within a period of six weeks from the date of receipt/production of a copy of this order. Revision is disposed as indicated above. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv