IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 CRP.No. 678 of 2009() --------------------- AGAINST THE ORDER DATED 05/12/2009 IN EP.125/2008 IN OS.108/2006 of PRINCIPAL SUB COURT,IRINJALAKUDA .................... REVN. PETITIONER(S): 3RD JUDGEMENT DEBTOR ----------------------------------------- SHAHUL HAMEED, S/O.PUZHANKARAYILLATH ABDUL KADAR, KAIPAMANGALAM VILLAGE AND DESOM, KODUNGALLUR TALUK, THRISSUR. BY ADV. SRI.K.A.SATHEESA BABU RESPONDENT(S): DECREE HOLDER ---------------------------- SUPREME FINANCIERS AND KURIES, CHENDRAPPINNI DESOM, EDATHIRUTHY VILLAGE, THRISSUR DISTRICT. ADV. SRI.C.HARIKUMAR FOR R1 SMT.MOLLY KOSHY FOR R1 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 23/06/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.No.678 of 2009 -------------------------------------- Dated this the 23rd day of June, 2010. ORDER Judgment debtor No.3 challenges the order issuing warrant against him on a finding that inspite of having sufficient means he has refused or neglected to pay the amount due under the decree. Learned counsel for petitioner/judgment debtor No.3 states that it is without any evidence that executing court has passed the impugned order dated 05.12.2009. Learned counsel has placed reliance on the decisions in Jolly George Varghese v. The Bank of Cochin (AIR 1980 SC 470) and Jayadev Singh A.K. v. M.A.Majeeth (2010 (2) KHC 730). Learned counsel for respondent/decree holder contends that the order is legal and proper and required no interference. 2. There can be no dispute that execution by arrest of the judgment debtor is possible only when the decree holder is able to prove that inspite of having means, judgment debtor has refused/neglected to pay the amount due under the decree. Initial burden of proving that judgment debtor has means is squarely on the decree holder. Question is whether that initial burden has been discharged by the decree holder, the onus if any is shifted to the judgment debtor and if so, that onus is discharged. A representative of respondent has given evidence as PW1 and stated that petitioner has sufficient means to clear CRP No.678/2009 2 the liability amounting to Rupees one lakh and odd. According to PW1, petitioner owns an autorickshaw and has landed property. Contra evidence is given by petitioner as RW1. He stated that he does not own any autorickshaw though he admitted that he has a licence to drive autorickshaw but he would say that on account of illness he is not able to do any job including driving autorickshaw. He stated that he has only five (5) cents of land where he himself and family are residing. He has no means to pay the decree debt. Executing court found that contention of respondent that petitioner owned an autorickshaw is not correct but from the fact that petitioner is having a driving licence, he knows driving of autorickshaw and owns five cents of land came to the conclusion that he has sufficient means. 3. Jayadev Singh A.K. v. M.A.Majeeth (supra) was a case where warrant of arrest was sought against the managing director of a company. This Court held that the mere fact of the judgment debtor is a managing director by itself did not mean that he has sufficient means. In this case petitioner according to respondent No.1, is the driver of autorickshaw. Assuming that he is an autorickshaw driver that does not by itself mean that he has sufficient means. When a judgment debtor pleads that he has no means that does not mean that he is bereft of any income. He has to maintain himself and his family. In Xavier v. Canera Bank Ltd. (1969 KLT 927) and Jolly George Varghese v. The Bank of Cochin (supra) it has been CRP No.678/2009 3 held that mere inability to pay does not justify an order of detention in prison and that imprisonment as a means of enforcement of money decree is available only if there has been some contumacious or unworthy conduct on the part of the judgment debtor when inspite of having means a judgment debtor does not pay, it could be taken as a conduct which is contumacious and unworthy but not in a case where a man has to maintain himself and family with the small income he has but from out of that income he is not able to discharge his liability. I have gone through the evidence of PW1 and RW1. PW1 though stated that petitioner has sufficient means, was not able to substantiate that. He merely stated that petitioner is earning Rs.15,000/- per month and he has landed property. But he did not even say that what is the extent of landed property petitioner has. In cross-examination he stated that he has travelled in the autorickshaw of petitioner. But, that does not mean that income of petitioner stated by PW1 has to be accepted. On the other hand, when petitioner was examined as RW1, he stated that he has no such income. It is seen from his cross-examination that there was no serious challenge to that version except a bald suggestion that he is earning Rs.15,000/- per month which he denied. In the circumstances for the mere reason that petitioner owned a licence to drive an autorickshaw or he has five (5) cents of land without anything more (without any evidence of income therefrom sufficient to discharge the liability) was not sufficient to enter a finding that petitioner has sufficient means. If that be so, the order under challenge is not sustainable and liable to be set aside. CRP No.678/2009 4 Resultantly this revision petition is allowed and the order under challenge issuing warrant to the petitioner is set aside. This order will not stand in the way of respondent No.1 seeking execution against petitioner in any other modes as provided under law. I.A.No.3659 of 2009 will stand dismissed. THOMAS P.JOSEPH, Judge. cks