IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 3RD SEPTEMBER 2008 / 12TH BHADRA 1930 WP(C).No. 21625 of 2008(Y) -------------------------------------- EP. NO.224/06 IN OS. NO.263/1995 OF THE ADDL. SUB COURT, THALASSERY. .... PETITIONER: ------------------- M/S.BHARATH MACHINES, MACHINERY MANUFACTURES, KATTAMBALLI,REP. BY ITS PROPRIETOR, P.V.NARAYANAN, RESIDING AT THEJAS, NELLANHIPARAMBA, NEAR MAHILA SAMAJAM, P.O.CHIRAKKAL, KANNUR. BY ADV. SRI.K.RAJESH SUKUMARAN RESPONDENTS: ------------------------ 1. K.P. PAUL, S/O. PORINCHU, MANAGING PARTNER OF M/S. POPULAR AUTO MOBILES, OLLUKARA VILLAGE, TRICHUR, TALUK, REP. BY POWER OF ATTORNEY HOLDER, FRANCIS PAUL, S/O.K.P. PAUL, BANERJEE ROAD, ERNAKULAM. 2. FRANCIS PAUL, S/O.K.P. PAUL, PARTNER OF M/S. POPULAR AUTO MOBILES, BANERJEE ROAD, ERNAKULAM. 3. JOHN PAUL, S/O.K.P. PAUL, PARTNER OF M/S.POPULAR AUTO MOBILES, OLLUKARA, TRICHUR, REP. BY POWER OF ATTORNEY HOLDER, FRNCIS PAUL, S/O.K.P. PAUL, BANERJEE ROAD, ERNAKULAM. 4. SAJU THOMAS, S/O.K.T. THOMAS, PARTNER, M/S POPULAR AUTO MOBILES, OLLUKARA VILLAGE, TRICHUR, REP. BY P.A HOLDER, FRANCIS PAUL, S/O.K.P. PAUL, BANERJEE ROAD, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.21635/2008 APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE PETITION IN EP. 224/2006 OF ADDL. SUB COURT, THALASSERY. EXT.P2:- COPY OF THE COUNTER STATEMENT FILED IN EP. 224/2006 DT. 15.11.06. EXT.P3:- COPY OF THE PETITION NUMBERED EP. 224/06 IN OS. NO.263/1995. EXT.P4:- COPY OF THE AFFIDAVIT FILED IN EA. 83/2007. EXT.P5:- COPY OF THE DOCUMENT LIST SUBMITED BY THE RESPONDENTS. EXT.P6:- COPY OF THE DOCUMENT NO. 1802/84 OF SRO KADACHIRA DT. 27.8.1984. EXT.P7:- COPY OF THE DOCUMENT NO.1704/84 OF SRO KADACHIRA DT. 9.8.1984. EXT.P8:- COPY OF THE CERTIFICATE OF REGISTRATION AS A SICK UNIT DT. 8.2.06. EXT.P9:- COPY OF THE LETTER ISSUED FROM THE GOVERNMENT. EXT.P10:- COPY OF THE AUCTION NOTICE ISSUED BY EMPLOYEES PROVIDENT FUND ORGANIZATION 16.1.2008. EXT.P11:- COPY OF THE PASSED BY THE ASSISTANT SUB JUDGE, THALASSERY IN EP. 224/2006. /TRUE COPY/ P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.21625 of 2008 ------------------------------- Dated this the 3rd September, 2008. J U D G M E N T Petitioner is the judgment debtor and respondents the decree holders in O.S.No.263 of 1995, on the file of Sub Court, Ernakulam. The decree was transferred to Sub Court, Thalassery, for execution. E.P.No.224 of 2006 was filed for realisation of the decree debt by arrest and detention of the petitioner, after sending notice under Rule 37 of Code of Civil Procedure. Petitioner appeared before the executing court and filed Ext.P2 objection contending that he has no sufficient means to pay the decree debt. The decree holder produced Exts.A1 and A2 sale deeds by which petitioner purchased properties in 1984. Learned Sub Judge under Ext.P11 order, based on those documents, found that petitioner has sufficient means and directed his arrest. This petition is filed under Article 227 of Constitution of India challenging Ext.P11 order. W.P.(C) No. 21625 of 2008 2 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel is that the executing court without considering the question whether by the properties available under Exts.A1 and A2, the decree debt could be paid, ordered his arrest, on a wrong assumption that petitioner can dispose that property and when there is an order of attachment, for the arrears of PF due from the petitioner on the properties, finding is not correct. 4. Though notice was served on the respondents, they did not appear. 5. Ext.P11 order shows that learned Sub Judge directed arrest of the judgment debtors 1 and 2. But the copy of the execution petition shows that there is only one judgment debtor. Though the judgment debtor is a proprietary concern represented by its Proprietor it could only be the proprietor. Ext.P11 order shows that no oral evidence was adduced. Executing court relied on Exts.A1 and A2 title deeds which W.P.(C) No. 21625 of 2008 3 establish purchase of property by the judgment debtor in 1984 and based on that fact, it was found that he has sufficient means. The argument of the learned counsel appearing for the petitioner is that learned Sub Judge did not grant opportunity to the petitioner to adduce evidence. For the reason that petitioner is owning properties, it cannot be said that he has sufficient means. If those properties do not yield any income and those properties cannot be charged or alienated or even if alienated will not fetch value it cannot be said that he has sufficient means. The executing court did not consider this aspect. In such circumstances, Ext.P11 order is quashed. Learned Sub Judge is directed to re-consider whether petitioner has sufficient means and he wilfully neglected to pay the decree debt, after permitting the parties to let in evidence, both documentary and oral. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.