IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 12141 of 2008(U) -------------------------------------- OS.406/2000 of MUNSIFF COURT, PARAVUR .................... PETITIONER: -------------------- SAJEEV, S/O. ACHUTHAN,KANNAMPARAMBIL, MANAKODAM KARA , N.PARAVUR, ERNAKULAM. BY ADV. SRI.LIJU. M.P SRI.G.PADMARAJ RESPONDENTS: -------------------------- JOSE, S/O.PAPU, KURISINGAL, VADAKKUMPURAM KARA, CHENDAMANGALAM, N.PARAVUR. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No. 12141 OF 2008 ===================== Dated this the 9th day of April 2008 JUDGMENT This writ petition is preferred against the order of the Munsiff's Court, North Parur in E.P.No.357 of 2007 in O.S.No.406 of 2000. The court below held that the judgment debtor is having sufficient means and he is neglecting to pay and therefore ordered arrest. It is against that decision the present writ petition is filed. Learned counsel for the petitioner submits before me that there is no positive evidence to hold that the judgment debtor has means and the court below erred in arriving at such a decision. In support of his contention, he had cited before me a decision of this Court reported in Muthukrishna Reddiar v. The Canara Bank Ltd., Alappuzha (1967 KLT 392) where the court held that apart from the affidavit no evidence was adduced by the decree holder. For personal execution to follow one of the points to be established is that since the passing of the decree the judgment debtor had the means to pay the decree amount or a substantial part thereof. It was a case where the whole material available before court was only in the form of an affidavit. So far as this case is Wp(C) 12141/2008 -:2:- concerned, under the amended C.P.C in lieu of chief examination an affidavit was filed. He was cross examined by the counsel appearing for the judgment debtor. The court on analysis of the evidence available before it came to the conclusion that it can be accepted. When it is so, the conduct of the judgment debtor by not entering the box assumes considerable significance. So here is a case where the court on analysis of the evidence of the decree holder arrives at a finding that it is acceptable and there are no materials supplied by the judgment debtor to shake the credibility of that evidence. The burden of proof cast on the decree holder by the statute has been discharged by examination of him facing the cross examination. The contra evidence is absolutely absent and the judgment debtor does not enter the box at all. I do not find that the court below has committed any mistake. Therefore I confirm the finding on means. If the judgment debtor wants to wipe off the liability, I direct the court below not to execute the warrant of arrest till 23.6.2008. If the amount is not paid within that time, the court shall proceed with the order which it has passed. M.N.KRISHNAN, JUDGE Cdp/- Wp(C) 12141/2008 -:3:-