IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 4TH FEBRUARY 2008 / 15TH MAGHA 1929 WP(C).No. 28714 of 2007(R) -------------------------- AGAINST THE ORDER DATED 14/03/2007 IN EA.127/06EP.10/06 IN AP.87/2000 of III ADDL. DISTRICT COURT, KOLLAM .................... PETITIONER: ------------ 1. PRASANTH.G.PILLAI,S/O.GOPINATHAN PILLAI, 2. PRATHEEP.G.PILLAI,S/O.GOPINATHAN PILLAI, PRAVITHA,KADAVOOR,PERINADU P.O., KOLLAM. BY ADV. SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.HARIKRISHNAN RESPONDENT: ------------- MAHARASTRA APEX CORPORATION LTD., REP BY ITS GENERAL POWER OF ATTORNEY HOLDER MR.BHA RGAVAN S/O. PARAMU,S.N.SADANAM, MUKKOOTTIL, MULAVANA VILLAGE,KOLLAM. BY ADV. SRI.P.SHRIHARI SMT.P.VANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO 28714 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE ORDER DT. 14.3.07 IN EA 127/06 IN EP 10/06 IN APPENDIX 87/00 OF THE 3RD ADDITIONAL DISTRICT COURT, KOLLAM EXT.P2. COPY OF THE AFFIDAVIT FILED BY THE PETITIONER DT. 28.11.06 EXT.P3. COPY OF THE LETTER DT. 21.10.98 /TRUE COPY/ PA TO JUDGE. M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 28714 OF 2007 --------------------- Dated this the 4thday of February, 2008 JUDGMENT This writ petition is preferred against the order of the III Additional District Judge, Kollam, in EA 127/06 in EP 10/06 in AP 87/00. 2. EP 10/06 was filed to execute an award passed by the arbitrator. The judgment debtors 1 and 3 were requested to be sent to prison in case of default of paying the decree debt. 3. I had perused the order of the court below. So far as 1st judgment debtor is concerned, the court below held that he is living with his maternal Uncle in a double storied building having an extent of 5,000 Sq. feet and secondly that he was the secretary of Lions Club at Kollam and further that he is getting an amount of Rs.7,000/- per month. So far as 3rd judgment debtor is concerned, the court found that the witness of the decree holder has deposed that he is employed in Techno Park and is getting Rs.10,000/- per month, which is not controverted by the evidence of the 3rd judgment debtor. It is on this basis, arrest warrant is issued. There is nothing on WPC NO 28714/07 2 record to show that the building wherein he is residing, belongs to him and that he was getting monthly salary of Rs.7,000/- from the chitty business. Learned counsel would submit that he was the Secretary of Lions Club but now he is not having any means. So documentary evidence available may be of real necessity. Without producing the same, the court cannot send a person to civil prison because it affects the liberty of a person. There are provisions in the CPC just like Order XXI Rule 41 (2) which enables the decree holder to call upon the judgment debtors to file affidavit in the form specified in the rule. When such an affidavit is ordered to be filed, and if it is not filed, certainly the court is entitled to draw adverse inference and it will be in the positive form of materials to pass a considered order. Therefore the present order is not sufficient to hold about the means. Therefore, I am not inclined to hold that there is evidence to show that the judgment debtors are having means. Therefore, I set aside the order under challenge and remit the case back to the executing court with liberty to the decree holder to call upon judgment debtors 1 and 3 to file an affidavit as contemplated under Order XXI Rule 41(2) of the CPC and in case of failure to file an affidavit to draw the adverse inference and proceed WPC NO 28714/07 3 with the matter. In case the affidavit is filed even then opportunity be given to the decree holder as well as the judgment debtors to explain the circumstances under which it was filed or to prove the means of them. Parties are directed to appear before the executing court on 4.3.08. M.N.KRISHNAN, JUDGE vps WPC NO 28714/07 4