IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 5TH MARCH 2010 / 14TH PHALGUNA 1931 WP(C).No. 34527 of 2009(O) ---------------------------------------- AGAINST THE ORDER IN EP.248/2009 IN OS.868/2006 of PRINCIPAL MUNSIFF'S COURT,ERNAKULAM .................... PETITIONER(S): ------------------------- D.A.SAIT, AGED 55 YEARS, S/O.LATE DAWEED SAIT, H.NO.1, MANILAL FLATS, OPP.Y.M.C.A., CHITTOOR ROAD, KOCHI-35. BY ADV. SRI.K.N.CHANDRABABU RESPONDENT(S): -------------------------- M/S.GOSHRI FUNDS (P) PVT.LTD., MARKET ROAD, ERNAKULAM. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2010, ALONG WITH WPC. NOS.34822 OF 2009, 34823 OF 2009 & 34824 OF 2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34527/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EXECUTION PETITION NO.248/09 IN OS. NO.868/06 FILED BY THE RESPONDENT. P2:- COPY OF THE OBJECTION FILED IN EP. NO.248/09. P3:- COPY OF THE PROOF AFFIDAVIT. P4:- COPY OF THE ORDER PASSED IN EP. NO.248/09 IN OS. NO.868/06 DTD. 8.10.09. TRUE COPY P.S. TO JUDGE tss P. BHAVADASAN, J. =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= W.P.(C) Nos. 34527, 34822, 34823 and 34824 of 2009 =~=~=~=~=~=~=~=~=~=~=~=~=~=~=~=~= Dated this the 5th day of March, 2010 JUDGMENT In all these writ petitions the issue that arises for consideration is one and same and hence, they are heard together and disposed of by a common judgment. 2. The respondent in all these writ petitions obtained a decree against the petitioner in various cases and he filed petitions for execution of the decree under Order XXI Rules 10 and 11(2) of the Code of Civil Procedure. The petitioner entered appearance before the court below in all the petitions and filed objections. He pointed out that he has no means to pay the decree debt in all the petitions. The court below took evidence in the matter and found that the petitioner has means to pay the decree debt and the petitions were allowed. 3. The allegation of the respondent/decree holder was W.P.(C) No. 34527/09 and con. cases 2 that the petitioner herein has means to pay the decree debt. The specific allegation is that the petitioner is running a business and getting an income of Rs.25,000/- per month and Rs.8,000/- is being paid by him as rent to that building. But, the decree holder admitted as PW1 that he has not seen any documents to prove that the petitioner is running a business and getting income. He stated that he had personally visited the business place of the petitioner and found that the petitioner is running the business. The court below accepted that version. It is also pointed out that the judgment debtor did not enter into the box to adduce evidence to show that he was not running the business, as alleged by the decree holder. Therefore, the court below found that the petitioner had means to pay the decree debt. 4. The learned counsel for the petitioner pointed out that the court below simply accepted the version given by PW1. The respondent has not produced any document to substantiate his claim. It is also pointed out that the judgment debtor has specifically denied that he had means W.P.(C) No. 34527/09 and con. cases 3 of income to pay the decree debt. 5. The court below has taken the view solely on the basis of the evidence of PW1. The evidence of PW1 is to the effect that he had reliable information regarding the business conducted by the judgment debtor. But he has not adduced any evidence to show that the judgment debtor is conducting business and getting income therefrom. The decree holder also says that the judgment debtor pays Rs.8,000/- as rent for the premises. The decree holder has not produced any document to show that the claim is true. A mere statement of the decree holder may not be sufficient to come to such a conclusion. 6. The learned counsel for the petitioner also pointed out that since the decree holder has not produced any documentary evidence to show that the judgment debtor has means of income and the judgment debtor did not enter into the box to adduce evidence to prove his case, the judgment debtor may be given an opportunity to prove his case. W.P.(C) No. 34527/09 and con. cases 4 7. In the result, the impugned order is set aside and the matter is remitted to the court below for fresh consideration, in accordance with law, granting liberty to both sides to adduce further evidence. The writ petitions are allowed as above. P.BHAVADASAN, JUDGE. mn.