IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 16TH OCTOBER 2009 / 24TH ASWINA 1931 WP(C).No. 28196 of 2007(F) --------------------------------------- E.P .NO.117/1994 IN OS.274/1989 OF MUNSIFF COURT, VADAKKANCHERRY. .................... PETITIONER: ------------------- KRISHNANKUTTY NAIR, AGED 61 YEARS, S/O. DEVAKI AMMA, THARENGATTIL HOUSE, NEDUMPURA P.O., PALLIKKAL. BY ADV. MR.RENJITH THAMPAN. RESPONDENTS: ------------------------ 1. NARAYANAN NAIR (DIED), S/O. KINATTINKARA LAKSHMY AMMA, PALLIKKAL DESOM, NEDUMPURA VILLAGE, TALAPPILLY TALUK. 2. RADHA, D/O. LATE NARAYANAN NAIR AND PARITHAPURATH KARTHIYANI AMMA, -DO-. 3. CHANDRIKA -DO-. 4. SANTHA, -DO-. 5. RUGMANI, -DO-. R2 TO R5 BY ADVS. MR.P.RADHAKRISHNAN , MR.MADHU RADHAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.28196/2007-F: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE ORDER DTD. 10/07/2007 OF THE MUNSIFF COURT, WADAKANCHERY. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.28196 of 2007 - F --------------------------------- Dated this the 16th day of October, 2009 J U D G M E N T Writ petition is filed seeking the following relief: “To call for the records leading to Ext.P1 and set aside the same.” 2. Petitioner is the judgment debtor in E.P.No.117 of 1994 in O.S.No.274 of 1989 on the file of the Munsiff Court, Vadakkancherry. The decree executed in the above suit was one for recovery of possession with mesne profits and the respondents are the decree holders. Towards the claim for mesne profits an amount of Rs.12,295/- per annum was determined as the sum due on the basis of a commission report, and liability of the petitioner/judgment debtor from three years prior to the suit till delivery of the property was effected on 10.2.1999 was found to be Rs.1,29,674/-. When the decree holder applied for realization of that sum by personal execution, the judgment debtor resisted it contending he has no means. In the enquiry on the plea of no means canvassed by the judgment debtor resisting his arrest the decree holder was examined as W.P.(C).No.28196 of 2007 - F 2 PW1 and the judgment debtor as RW1. On the basis of the materials produced and hearing the counsel on both sides, taking into consideration that till delivery of the property pursuant to the decree granted for recovery of possession all along the petitioner continued to be in possession of the properties and, according to the court below, he had thereby derived sufficient income to pay the mesne profits. In forming such a conclusion it was held that he has the means to pay the decree debt towards means profits. The court below thereupon ordered for issuing warrant for arrest of the judgment debtor. Propriety and correctness of the order is impeached in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Perusing Ext.P1 order impugned in the writ petition with reference to the submissions made by the counsel on both sides I find some material aspects to be considered in ordering warrant against a person to satisfy a decree debt have not been taken note of by the execution court. True, the judgment debtor W.P.(C).No.28196 of 2007 - F 3 was in possession of the properties in respect of which mesne profit was determined as payable at the rate of Rs.12,295/- per annum. But, that cannot lead to the conclusion that the sum retained by him as accumulated from year to year till delivery was affected. In Ext.P1 order there is no reference as to whether the judgment debtor has got any other means or source of income. Learned counsel for the respondent/decree holder submits that evidence was tendered by the decree holder that he is an agriculturist having sufficient property and income. But, those aspects, however, have not been reflected in the order. Whatever that be, in the matter of issuing warrant against the judgment debtor the court has to follow the mandatory provision covered under Section 51 of the CPC. When a judgment debtor raises a plea of no means to resist his arrest the court has to come to a finding that he has or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and there is wilfull refusal or neglect to pay such sum. Unfortunately that has not been taken note of nor any finding thereof entered in Ext.P1 order by the execution W.P.(C).No.28196 of 2007 - F 4 court. Similarly as to whether the judgment debtor has disclosed transfer of sale or removal of any part of his property or committed any act in relation to his property after the existence of the suit, is also a relevant factor in judging the merit of his plea of no means. Without adverting to any of those matters solely on the basis that the property which he had possession earlier provided an income of Rs.12,295/- per annum the court below has jumped to the conclusion that his plea of no means is meritless and then proceeded to issue order warrant against him. Ext.P1 order in the above circumstance cannot be sustained. Setting aside that order, I direct the court below to consider the matter afresh taking note of the observations made above and in accordance with law, within a period of three months from the date of receipt of a copy of this judgment. Parties shall be given further opportunity to lead evidence, if so sought for. Writ petition is disposed of as above. S.S.SATHEESACHANDRAN, JUDGE. bkn/-