IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 CRP.No. 249 of 2006() --------------------- AGAINST THE ORDER DATED 22/11/2005 IN EP 65/05 IN OS.133/2003 of MUNI-MAGI.COURT,THODUPUZHA .................... REVN. PETITIONER: DECREE HOLDER/PLAINTIFF: --------------------------------------------- LUKOSE, S/O. VARGHESE, KUNNAPPILLIL HOUSE, KARIMANNOOR, THODUPUZHA TALUK. BY ADV. SRI.MATHEW JOHN (K) SRI.SUJESH MENON V.B. RESPONDENT: JUDGMENT DEBTOR/DEFENDANT: ----------------------------------------- K.S. JOSE, S/O. DEVASSIA, KUNNAPPILLIL HOUSE, KARIMANNOOR, THODUPUZHA TALUK. ADV. SRI.P.GOPAKUMARAN NAIR SRI.C.S.DIAS FOR R SRI.AJITH MURALI FOR R THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. SURENDRA MOHAN, J. ------------------------------------------------------------ C.R.P. NO: 249 OF 2006-B ----------------------------------------------------------- Dated this the 18th November, 2009. O R D E R The decree holder in a suit for money is the revision petitioner. He challenges an order passed by the Execution Court dismissing the Execution Petition filed by him holding that the judgment debtor was a man of no means. 2. The revision petitioner instituted the suit O.S.133/2003 before the Munsiff's Court, Thodupuzha against the respondent for the recovery of amounts due to him. The suit was subsequently compromised among the parties and on the basis of the compromise, a decree was passed entitling the revision petitioner to recover an amount of Rs.56,000/- from the respondent with interest. The compromise decree also provided that the decree shall be executed only on the expiry of the period of six months from the date of the decree. Since the amount was not paid, the petitioner filed an Execution petition E.P.65/2005 for the realisation of an amount of Rs.90,782/- from the respondent. 2. The respondent objected to the execution of the decree contending mainly that the parties were relatives, that he was an aged man suffering from various diseases like asthma and CRP 249/2006 2 hypertension. According to him, he did not own any property of his own and, therefore, he pleaded that he had no means to pay the decree debt. 3. The decree holder examined himself as a witness in the proceedings. As revealed from the order under revision, he deposed that the eldest son of the respondent was residing in a two storied building which has been taken on rent by him. His aged father owned two acres of land and his mother owned another extent of two acres. His son resides in a two storied building in a property, 50 cents in extent. His elder brother had 15 acres of land cultivated with rubber, coconut palms etc. One of his brothers who had become a priest also owns land admeasuring 3 Acres with a building therein. It is alleged that income from the said property is taken by the respondent-judgment debtor. One of his sisters who has become a nun is in Namibia in Africa. Another son of his is alleged to be working as a driver. 4. The judgment debtor, when he was examined in Court, has denied the above allegations. He has gone to the extent of pleading ignorance about his brother who is a priest and who is stated to be owning substantial property. He has further deposed that he does not know whether his sister who is a nun owns CRP 249/2006 3 immovable property. He has also stated that he does not know whether the property in which he is residing has an extent of 5 acres. However, it has come out in evidence that he has been having a telephone connection in his name for the past 5-6 years and that he had been paying the monthly rent in respect of the said telephone. 5. The court below considered the evidence of the decree holder and judgment debtor and has found that the judgment debtor is a person who has no means to pay the decree debt. The said order is under challenge in the above revision. 6. I have heard Shri. Mathew John who appears for the revision petitioner and Shri. P. Gopakumaran Nair who appears for the respondent. I have also considered the rival contentions advanced by the counsel. 7. The Court below has, in its order given a narrative summarising the evidence given by the decree holder as well as the judgment debtor. However, the Court has not analysed the evidence or given any reasons as to why the Court preferred to rely on the deposition of the judgment debtor in preference to that of the decree holder. The Court below has not given any reasons for disbelieving the decree holder or believing the judgment debtor. In CRP 249/2006 4 short, the Court below has omitted to discuss the evidence available in the case and to consider the probative value thereof. This is a case in which no documentary evidence is produced by the parties. Hence, it was essentially a case of believing or disbelieving the oral versions given by the contesting parties. Therefore, it was imperative for the Court to have discussed the evidence on record and stated reasons for believing or placing reliance on the evidence of the judgment debtor. In the order under revision, after narrating the evidence on record the Court below has simply entered a finding that the judgment debtor is a man of no means. The counsel for the revision petitioner is right in his submission that the finding of the Court below is not in accordance with the principles laid down by this Court in the various decisions on the point. 8. In the above circumstances, the order under revision is liable to be set aside. I do so. The court below is directed to consider E.P.65/2005 in O.S.133/2003 afresh, after giving an opportunity to the parties to produce any additional documents or to examine any additional witnesses, if they choose to do so and to pass final orders on the execution petition in accordance with law. Considering the long pendency of the proceedings the Court below CRP 249/2006 5 shall make every endeavour to pass final orders on the execution petition as expeditiously as possible. The parties shall appear before the Court below on 10.12.2009. The C.R.P is allowed. In the circumstances of the case, there will be no order as to costs. K. SURENDRA MOHAN Judge jj CRP 249/2006 6 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: