IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH AUGUST 2011 / 25TH SRAVANA 1933 OP(C).No. 573 of 2010(O) ----------------------------------- EP 29/08 IN OS.50/2002 of II ADDL.SUB COURT,THRISSUR .................... PETITIONER ------------------- C.M.VIJAYAN, S/O.MADHAVAN, NO.141 A, SIVASUBRAMANYAN ROAD, R.S.PURAM, COIMBATORE-641002. BY ADVS. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V. RESPONDENT(S): -------------------------- C.P.PRABHAKARAN, S/O.PAPPU, NO.6/134, CHALAKUDY HOUSE, SREYAS NAGAR, OLLUKARA P.O., THRISSUR- 680 655. BY ADV. SRI.M.A.SHIHAB SRI.M.R.MOUNEESH THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 16/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss OPC. NO.573/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EVIDENCE ADDUSED BY THE PETITIONER. P2:- COPY OF THE EVIDENCE RENDERED BY THE RESPONDENT. P3:- COPY OF THE PAYMENT DETAILS OF TELEPHONE NO.2373772 BELONGING TO THE RESPONDENT FOR THE PERIOD FROM JANUARY 2009 TO AUGUST 2009. P4:- COPY OF THE ORDER DTD. 30.6.2010 IN EP. 29/08 IN OS. 50/02 OF THE IIND ADDITIONAL SUBORDINATE JUDGE'S COURT, THRISSUR. RESPONDENT'S EXHIBITS NIL:- TRUE COPY P.S. TO JUDGE tss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.573 of 2010 ==================================== Dated this the 16th day of August, 2011 J U D G M E N T Petitioner obtained a decree for recovery of money against respondent and his two sons from the court of learned Third Additional Sub Judge, Coimbatore. The decree certificate was transmitted to the court of learned Sub Judge, Thrissur for execution. Petitioner sought personal execution against respondent and gave evidence as P.W.1. Learned Second Additional Sub Judge, Thrissur vide Ext.P4, order concluded that there is no evidence to show that respondent, in spite of having means refused to pay the amount and accordingly dismissed the execution petition. That order is under challenge. 2. Learned counsel submitted that evidence on record is consistent with the case of petitioner that respondent has sufficient means. It is contended that in spite of having had sufficient means, respondent has failed to pay the amount due under the decree. It is pointed out from Ext.P3 that respondent is a subscriber of telephone in his rented premises. According to the petitioner, that building was taken on rent by the respondent on a rent of Rs.6,000/- per month and he is engaged in gold business O.P(C) No.573 of 2010 -: 2 :- employing a few persons. Learned counsel for respondent contended that telephone charges were being paid by the daughter of respondent and that the telephone connection was disconnected on 31.08.2009. 3. Exhibit P3 contains details of payment of telephone charges from April to August, 2009. It would appear from Ext.P3 and it is not disputed also that telephone connection stood in the name of respondent. During cross-examination of respondent as R.W1 he stated that telephone charges were being paid by his daughter. According to him the building where he is residing is taken on rent by his daughter. 4. Now as things stand, there is only the evidence of P.W.1 and R.W.1. Petitioner has not taken steps to show that the building was taken on rent by the respondent. It was possible to examine the owner of the building from whom building was taken on rent to substantiate that contention. It is pointed out by learned counsel that petitioner did not take out a commission to show whether respondent is conducting the business as pleaded by the petitioner. It is also pointed out that respondent has filed an insolvency petition to declare him as insolvent. 5. Having heard both sides, it is only appropriate that O.P(C) No.573 of 2010 -: 3 :- parties are given opportunity to adduce further evidence in respect of their respective contentions. It is open to the petitioner to adduce further evidence to prove his case that the building is taken on rent by the respondent and the latter is engaged in gold business, etc. Respondent is also free to adduce further evidence if any, in support of his plea. Resultantly, Original Petition is disposed of as follows: Exhibit P4, order dated 30.06.2010 in E.P. No.29 of 2008 in O.S. No.50 of 2002 of the court of learned Second Additional Sub Judge, Thrissur is set aside. The matter is remitted to learned Sub Judge for fresh decision after giving both sides opportunity to adduced further evidence. Parties shall appear in the court below on 22.09.2011. THOMAS P. JOSEPH, JUDGE. vsv