IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 4TH DECEMBER 2008 / 13TH AGRAHAYANA 1930 CRP.No. 776 of 2008 --------------------------------- EP.23/2007 of MUNI-MAGI.COURT,MANANTHAVADY OS.272/2007 of PRL.M.C.,KANNUR .................... REVN. PETITIONER/DEFENDANT: M.V.BHASKARAN, RESIDING AT VALAPPIL HOUSE, VALLIYOOR KAVU ROAD, P.O.MANANTHAVADY. BY ADV. SRI.M.SASINDRAN SRI.NAZARUDDIN.M. RESPONDENT/PLAINTIFF: ULLAS V.V., S/O.ACHUTHAN, AGED 43, RESIDING AT SARADAS, PATTIAM AMSOM, PATTIAM DESOM, THALASSERY TALUK, P.O.POOKODE, KANNUR DISTRICT. ADV. SRI.B.KRISHNAN SRI.R.PARTHASARATHY THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 04/12/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.776 of 2008 -------------------------- ORDER The judgment debtor in E.P.No.23/07 in O.S.No. 272/07 on the file of the Munsiff's Court, Kannur is the petitioner. This revision petition is filed seeking for an order setting aside the order dated 16.9.2008 passed on the said EP directing arrest warrant being issued against the petitioner. 2. It is submitted that along with the execution petition, the respondent/decree holder filed Annexure-A affidavit swearing to the means of the petitioner/judgment debtor, to which, the judgment debtor has filed counter stating that he has absolutely no income or ability and means to raise the fund to discharge the debt, but that the court below has, without considering the question of means, by a cryptic order, directed warrant of arrest being issued without entering into any finding as to whether the petitioner is having the ability and means to discharge the debt. The order passed by the court below directing issuance of CRP 776/08 2 arrest warrant reads thus: “Ordered pronounced. Execution Petition is allowed. Issue Arrest Warrant against the respondent. Pay batta to 13.10.2008.” From this order, it is not clear as to whether any order has been passed by the court below entering into findings on the disputed question of means of the petitioner/judgment debtor to discharge the debt. 3. Counsel for the respondent/decree holder also submits that there is no such order adjudging the petitioner/judgment debtor to be a person of means or as one who is having the ability to discharge the debt. However, he submits that a copy of the partition deed had been produced in the court below, which would show that the petitioner/ judgment debtor obtained 23 cents of garden land and 36 cents of paddy field in partition, but that the petitioner/judgment debtor has disposed of those properties as evidenced by the documents CRP 776/08 3 produced by him in the court below; that it would show that after the institution of the suit, the petitioner has disposed of his properties, which stood in his name and that therefore, under Section 51 of CPC, it was a fit case where warrant of arrest could have been issued against the petitioner/judgment debtor for enforcing payment of the decree amount. 4. However, inasmuch as there is no considered order passed by the court below either regarding the ability and means of the judgment debtor to pay the decree debt or that the petitioner/judgment debtor has disposed of all the properties he had after the institution of the suit, the order assailed is unsustainable and is set aside and E.P. No.23/07 is remanded for consideration afresh by the execution court. This revision petition is disposed of with the above direction. 4th December, 2008 (K.P.Balachandran, Judge) tkv