IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 17TH MAY 2010 / 27TH VAISAKHA 1932 CRP.NO. 241 OF 2010() --------------------------------- AGAINST THE ORDER DATED 31/03/2010 IN E.P. 300/2009 IN OS.1215/2006 OF PRL.M.C.,ERNAKULAM .................... REVN. PETITIONER – 1ST JUDGMENT DEBTOR - 1ST DEFENDANT: ------------------------------------------------------------------------------------ VASUDEVAN K.PANDALATH, S/O.KRISHNA PILLAI, PANDALATH BUNGALOW, ST.JAMES ROAD, THYKOODUM, COCHIN - 19. BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS – DECREE HOLDER & 2ND JD – PLAINTIFF & 2ND DEFENDANT: ------------------------------------------------------------- 1. THE STATE BANK OF MYSORE, REPRESENTED BY ITS BRANCH MANAGER, ERNAKULAM BRANCH, M.G.ROAD, ERNAKULAM. 2. RATHEESH KUMAR .R. S/O.R.RAVEENDRAN NAIR MES QUARTERS, NO.53/3, KATARI BAGH, NAVAL BASE, KOCHI. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.241 of 2010 ==================================== Dated this the 17 th day of May, 2010 O R D E R Petitioner, judgment debtor No.1 along with two others has suffered a decree for payment of money to respondent No.1, decree holder according to petitioner an ex parte decree against which he has already filed petition to set aside the same. In the meantime respondent No.1 put the decree in execution and sought arrest and detention of petitioner stating that he has sufficient means to pay the amount but he has wilfully not paid the amount. Details of assets possessed by the petitioner were also stated. Petitioner denied the allegations and claimed that he has no means. Respondent No.1 examined P.W1 and proved Exts.A1 and A2. Petitioner gave evidence as D.W.1 and proved Exts.B1 to B11. Executing court found that petitioner has sufficient means, has willfully failed to pay the amount and ordered warrant against him. That order is under challenge in this Civil Revision Petition. It is contended by learned counsel that there is not even prima facie evidence that petitioner has sufficient means to satisfy the decree and that the decision in C.R.P. No.241 of 2010 -: 2 :- Kuppuswamy v. P.G. Menon (1992[2] KLT 203) has no application to the facts of this case. 2. In that decision this Court held that though burden of proving the circumstances specified in Section 51 of the Code of Civil Procedure lies on the decree holder, strict proof of every detail is not necessary and that when prima facie evidence is adduced that the judgment debtor has realisable assets from which necessary money can be raised onus shifted to the judgment debtor to prove otherwise. Exhibit A1 is the bio-data for credit report declaration given by the petitioner and Ext.A2 is the application for personal loan. According to respondent No.1, petitioner has two items of landed properties and other assets. It is not very much in dispute that petitioner has an item of landed property at Pandalam, according to respondent No.1, the extent being one acre while according to petitioner, it is only 81 cents. Exhibit A2 is the loan application submitted by the petitioner wherein he stated that he owns 5 cents of land at Thykkoodam which is worth Rs.25,00,000/- and the building in the said property is worth Rs.1,00,000/-. In Ext.A2 extent of the property at Pandalam is shown as one acre worth Rs.20,00,000/- and the building therein is worth Rs.10,00,000/-. He also stated that he C.R.P. No.241 of 2010 -: 3 :- has machinery worth Rs.31,00,000/-, owns a scooter and 20 sovereigns of gold ornaments worth Rs.1,20,000/-. Now the stand of petitioner is that he does not own any such properties. As D.W1 he has stated he has no property at Thaykkoodam, nor does he own scooter or machinery. That version of petitioner as D.W1 cannot be accepted on the face value in the light of Exrt.A2. It has also come in evidence that the first child of the petitioner is studying for B-Tech., at Bangalore and the second child is studying in the Toch-H School at Ernakulam. According to the petitioner his children are being educated at the expense of his brother-ion-law. But that version of petitioner does not appear to be quite acceptable in the light of his own statements in Ext.A2, application for loan and in the absence of evidence. When it is shown that petitioner has sufficient means to satisfy the decree and in spite of that he has not paid the amount, I can take it only as wilful default to satisfy the decree. It is in the above circumstances that executing court has relied on the decision referred to above and found that petitioner has sufficient means to satisfy the decree. There is no reason to interfere. 3. Yet another objection taken by petitioner is that since the decree flowed from an agricultural debt he is not liable to pay C.R.P. No.241 of 2010 -: 4 :- any amount in view of the Debt Relief Scheme of 2006. Exhibits A1, A2, and the evidence of petitioner as D.W.1 show that it was not an agricultural loan but a personal loan. Executing court has taken into account that also. I do not find illegality or infirmity in the order passed by the executing court requiring interference by this Court. Civil Revision Petition fails and it is dismissed. THOMAS P. JOSEPH, JUDGE. vsv