IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 2ND DECEMBER 2009 / 11TH AGRAHAYANA 1931 WP(C).No. 7089 of 2009(O) ------------------------- AGAINST THE ORDER DATED 20/12/2008 IN EP.67/2008 IN OS.48/2007 of MUNSIFF COURT, VADAKARA .................... PETITIONER(S): --------------- ARYOTT RAJAN, S/O.KUNKAR, 50 YEARS, MEMUNDA AMSOM DESOM. BY ADV. SRI.ZUBAIR PULIKKOOL RESPONDENT(S): --------------- MEETHALE PUTHIYEDATHU MAMMU HAJI, S/O.ABDULLA, 65 YEARS, EDACHERY AMSOM DESOM. ADV. SRI.K.V.SOHAN FOR R1 SMT.SREEJA SOHAN.K. FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ---------------------------------------- W.P.(C).No.7089 OF 2009 -------------------------------- Dated this the 2nd day of December 2009 ---------------------------------------------------------- JUDGMENT Petitioner is the judgment debtor in E.P No. 67 of 2008 in O.S No. 48 of 2007 on the file of Munsiff Court, Vatakara. Decree executed is one passed in a suit for money, and the respondent is the decree holder. Petitioner resisted the execution contending that he has no means. On the side of the decree holder, Ext.A1 registration particulars of a motor vehicle was produced showing that the respondent had purchased such a vehicle after the decree. The document produced also indicated that the vehicle had been hypothecated to I.C.I.C.I bank. On the basis of that document alone, the execution court came to the conclusion that the plea of no means canvassed by the petitioner/judgment debtor is unfounded and ordered for issuing warrant against him. Propriety and correctness of that order is challenged in the writ petition. W.P.(C).No.7089 OF 2009 Page numbers 2. I heard the counsel on both sides. Perusing Ext.P3 order, I find, the conclusion formed by the court below on the basis of Ext.A1 particulars, a registration certificate in respect of a motor vehicle in the name of the judgment debtor, that alone, to conclude that he has means cannot be sustained. Initial burden is always on the decree holder when a plea of no means is canvassed by the judgment debtor, resisting the execution to show that he has means to discharge the decree debt or part thereof. That has not been satisfactorily established in the present case. The impugned order is set aside, and case remitted for fresh consideration providing an an opportunity to the decree holder and also to the judgment debtor to produce materials substantiating their respective case. The execution court is also directed to complete the enquiry over the plea of no means canvassed by the judgment debtor within a period of six weeks from the date of receipt/production of a copy of this judgment. Stay of operation of Ext.P3 order had been granted by this court W.P.(C).No.7089 OF 2009 Page numbers directing the judgment debtor to deposit a sum of Rs.10,000/- towards the decree debt. It is reported that the amount had been deposited. That amount shall be released to the decree holder to be adjusted in the decree debt. I make it clear that the deposit made by the judgment debtor shall not have any reflection or bearing on the plea of no means canvassed by him, which has to be considered independently on the basis of the materials produced in the case. Subject to the above observations, the writ petition is disposed. Sd/- S.S.SATHEESACHANDRAN, JUDGE //TRUE COPY// P.A TO JUDGE vdv W.P.(C).No.7089 OF 2009 Page numbers