IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 22ND JANUARY 2008 / 2ND MAGHA 1929 WP(C).No. 2461 of 2008(R) ------------------------- TSC OS.267/1997 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: ------------- B.GOPI, SHAJI BHAVAN, DARSAN NAGAR, KUDAPPANAKKUNNU VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.RENJITH THAMPAN RESPONDENTS: ----------------- 1. C.T.VARGHESE, NALUKETTIL CHUNGAM VEEDU, NALUKETTU, KORATTY VILLAGE, MUKUNDAPURAM TALUK. 2. JOHNY, RESIDING AT NALUKETTIL CHUNGAM VEEDU, NALUKETTU, KORATTY VILLAGE, MUKUNDAPURAM TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 2461 OF 2008 --------------------- Dated this the 22nd day of January, 2008 JUDGMENT This writ petition is preferred against the order of the Subordinate Judge, Irinjalakuda in EP 64/06 in TSC (O.S.) 267/97. The court below held that the judgment debtors 1 and 3 have no means and therefore declined to order arrest. The decree holder would contend that judgment debtors 1 and 3 are having sufficient means and to prove the same, he has filed an affidavit. But the court held that the item of property, which belonged to the judgment debtors, have already been attached in another proceeding and therefore it was of the opinion that there is no realisable asset. 2. Learned counsel for the decree holder would submit that these persons are employed in Gulf countries and have got substantial means and it is proved by the affidavit. If the court is dissatisfied with the affidavit then certainly the court could have asked the decree holder to mount the box and adduce evidence and the court should have weighed the evidence in that aspect. The WPC NO 2461/08 2 approach of the court below is not proper especially when the judgment debtors counsel represents no instruction and was absent. Therefore, the order under challenge is set aside and the matter is remitted back to the Subordinate Judge, Irinjalakuda for fresh consideration after an opportunity to the decree holder to prove the means of the judgment debtors. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE vps WPC NO 2461/08 3