IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 26TH AUGUST 2008 / 4TH BHADRA 1930 CRP.No. 541 of 2008() --------------------- AGAINST THE ORDER DATED 25/03/2008 IN E.P 115/2007 IN OS.235/2004 of MUNSIFF COURT, THALIPARAMBA .................... PETITIONER: RESPONDENT IN E.P./JUDGMENT DEBTOR: ------------------------------------------------------------------------------------- M. JOSEPH, S/O. VARKEY, MUTHUKATTIL HOUSE, CHUNDAPARAMBA, MUYIPRA, ERUVESSY P.O., KANNUR DIST BY ADV. SRI.KALEESWARAM RAJ RESPONDENT: PETITIONER IN E.P./DECREE HOLDER: -------------------------------------------------------------------------------- NORTH MALABAR GRAMIN BANK, THERTHALLY BRANCH, THROUGH THE BRANCH MANAGER, NORTH MALABAR GRAMIN BANK, THERTHALLY. BY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.1583 OF 2008 IN C.R.P.NO.541/2008 DISMISSED 26/08/2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO. 541 OF 2008 ------------------------------------------ Dated this the 26th day of August, 2008 O R D E R Petitioner is the judgment debtor and respondent the decree holder in E.P.115 of 2007 in O.S.235 of 2004 on the file of Munsiff Court, Taliparamba. E.P.115 of 2007 was filed for realisation of decree debt by arrest and detention of the petitioner. Petitioner filed Annexure-II counter affidavit contending that he has no movable or immovable properties and he is not having means to pay the decree debt. Under the impugned order dated 25.3.2008, executing Court, finding that petitioner has sufficient means, directed his arrest. It is challenged in this revision petition filed under Section 115 of Code of Civil Procedure. In this revision petition, petitioner had contended that he has no means at all and the executing Court, without any evidence to prove the means, directed his arrest and therefore the order is illegal. It was also contended that the debt due by the petitioner was written off by the decree holder Bank under the debt relief scheme evolved by Government of CRP.541/08 2 Kerala. Eventhough notice was served on the respondent, he did not appear or disputed the said allegation. 2. Learned counsel appearing for petitioner was heard. 3. The learned counsel pointed out that as per the impugned order, sufficient means was found based on an agreement executed by petitioner on 4.9.1999, when the decree was passed only on 30.3.2007. It was also argued that under Annexure-III the property stated in the said agreement was alienated as early as on 15.3.2000 much before the decree was passed and petitioner has not been in possession of that property and therefore there is no evidence to prove sufficient means. There is force in the submission of the learned counsel. No evidence was adduced by the decree holder to prove that petitioner/judgment debtor has sufficient means to pay the decree debt. The only evidence relied on by the executing Court is an agreement, which was marked in the suit as Ext.A1. Even if Ext.A1 is taken as correct, it only shows that on 4.9.1999 petitioner was having an extent of 1.72 acres property as stated therein. Ext.A3 shows that, that property was alienated in March 2000. Learned Munsiff was not justified in taking that agreement as a basis for finding the means of the petitioner. In CRP.541/08 3 the absence of any evidence to prove the sufficiency of means of the judgment debtor learned Munsiff should not have ordered his arrest. The impugned order finding the means and ordering arrest of petitioner is therefore set aside. Revision petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-