IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 OP(C).No. 660 of 2010(O) ------------------------ ACP.16/2004 of DISTRICT COURT, KASARAGOD .................... PETITIONER: ------------------------- A.K. RAMZAN, AGED 67 YEARS, AVIKKARA HOUSE, KOTTACHERY, KANHANGAD, KASARAGOD DISTRICT. BY ADV. SRI.M.V.AMARESAN RESPONDENT: --------------- M/S. INDIRA CEMENTS CAPITAL & FINANCE LTD., NO.38, STERLING ROAD, CHENNAI. PIN-600034, REPRESENTED BY BRANCH MANAGER, CALICUT AND POWER OF ATTORNEY HOLDER V.K.MADHUKUMAR. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2010 ALONG WITH OPC NO. 692 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).Nos.660 and 692 of 2010 --------------------------------------- Dated this 18th day of November, 2010 JUDGMENT These petitions are in challenge of separate orders passed by the learned District Judge, Kasaragod in E.P.Nos.17 and 25 of 2008 in A.C.P.Nos.16 of 2004 and 14 of 2005, respectively. Respondent has obtained an award for recovery of money from the petitioner in both the cases and sought execution of the awards in the court of learned District Judge, Kasaragod. Respondent wanted personal execution against petitioner alleging that in spite of having sufficient means, he has refused/neglected to pay the amount. In O.P.No.660 of 2010 the amount due as per award in A.C.P.No.16 of 2004 is `.8,99,016/-, while in O.P.No.692 of 2010 the amount due as per award in A.C.P.No.14 of 2005 is `.4,78,920/-. Pleader pleaded that he has no means of pay the amount. The representative of respondent gave evidence as PW1 and spoke to the means of petitioner. Respondent produced Exts.P3 and P4 (in both cases) in support of plea of means of petitioner. Petitioner did not enter the box (in both the cases). Learned District Judge issued warrant to the petitioner in both the execution petitions which are under O.P(C).Nos.660 and 692 of 2010 : 2 : challenge as above stated. Learned counsel contends that the order is bad since it does not give any reason for issue of warrant. It is also contended that evidence let in by the respondent through PW1 and Exts.P3 and P4 is not sufficient to find means of petitioner. According to the learned counsel, merely based on Exts.P3 and P4 no finding could be made as regards the alleged means of petitioner. 2. I have gone through Exts.P3 and P4 and the orders under challenge. In O.P.No.660 of 2010 Ext.P6, order reads as follows: “Heard. It is seen that J.D.(R2) is having means. So issue warrant of arrest. Call on 23-11-2010”. In O.P.No.692 of 2010 the impugned order reads as follows: “Heard. Issue warrant of arrest. Call on 23-11-2010”. No doubt, learned District Judge ought to have passed detailed orders stating reasons rather than passing cryptic orders. Parties to the litigation and the superior courts are entitled to know the reasoning of the court for passing the impugned order. It is unfortunate that the message in the various binding precedents has not reached the subordinate courts. But, absence of reasons by itself is not a ground to remand or inference with O.P(C).Nos.660 and 692 of 2010 : 3 : the orders under challenge if on materials on record the ultimate orders could be sustained. Time and again binding authorities have held that a remand should be avoided merely to record reasons. So far as in O.P.No.692 of 2010 learned District Judge observed, “it is seen that J.D.(R2) is having means” but even such an observation is lacking in the impugned order in O.P.No.660 of 2010. But having regard to the facts and circumstances I do not find reason to interfere with the orders for the mere reason that it lacks reasoning. 3. Now the question is whether respondent has proved that petitioner has sufficient means. This court in Kuppuswamy Vs. P.G.Menon (1992(1) KLT 203) has held that burden of proving circumstances specified in Section 51, proviso (b) of the Code of Civil Procedure (for short, “the Code”) lies on the decree holder but, strict proof of every detail is not necessary. Dealing with the nature of evidence required to issue warrant under Sec.51, proviso (b) of the Code it was held that the decree holder should give some indication or details of properties or assets of the judgment debtor and that it is competent to the executing court on materials placed before it to draw inference as regards the statutory finding required by Sec.51, proviso (b) of the Code. O.P(C).Nos.660 and 692 of 2010 : 4 : If there is prima facie materials on record about means of the judgment debtor, it is for the judgment debtor to rebut it. He is in a better position to know of his assets. This court referred to the crucial words “means to pay the amount of decree or substantial part thereof” and observed that it only meant that judgment debtor should have realisable assets to pay up the decree amount. I shall consider the evidence on record in the light of the above dictum. 4. Exts.P3 and P4 in both the cases are copy of judgment and decree in O.S.No.14 of 2008 of the court of learned Sub Judge, Hosdurg. That was a suit filed by petitioner for return of advance sum of Rupees Five Lakhs paid to the defendants therein in connection with an agreement for purchase of property belonging to the defendants in the said suit. A reading of Ext.P3, judgment would show that petitioner had agreed to purchase the property for a total sum of `.12,75,000/- and paid Rupees Five Lakhs by way of advance. True, defendants therein contended that petitioner was not willing to perform his part of the contract (by payment of the balance sale consideration). But, that was not an issue in the suit since the suit itself was for return of advance money. It is seen from Exts.P3 and P4 that a decree was granted O.P(C).Nos.660 and 692 of 2010 : 5 : in favour of petitioner on 07-10-2009 for recovery of `.5,42,410/- with future interest @12% per annum on the principal sum of `.Five Lakhs. According to the petitioner, that decree has not so far been realised. But, it is relevant to note that petitioner did not go into the box to say so. Exts.P3 and P4 show that it is not as if petitioner had no means at all as he pleaded. He was capable enough to purchase the property for a sum of `.12,75,000/- and pay Rupees Five Lakhs by way of advance. That indicated that petitioner was having sufficient means. It is not the case of petitioner that subsequent to Exts.P3 and P4 he has lost his means. Learned counsel for petitioner contends that rather than seeking personal execution respondent could have attached Ext.P4, decree. But, the decree is assignable and petitioner could have raised the funds by such assignment rather than advising respondent to attach the decree. Petitioner could also have realised the amount due under Ext.P4 decree as it bears a statutory charge on the property agreed to be sold to him. The permissible inference in the circumstances of this case as held in Kuppuswamy Vs. P.G.Menon (supra) and from Exts.P3 and P4 is that petitioner has sufficient means. Petitioner has not entered into box to adduce contra evidence. In the O.P(C).Nos.660 and 692 of 2010 : 6 : circumstances the orders passed by the learned District Judge though it lacks proper reasoning do not call for interference. 5. However, having heard learned counsel for petitioner and considering the difficulties of petitioner stated by learned counsel, I am inclined to grant him two months' time to pay the amount due. During that time, warrant of arrest issued to the petitioner will stand in abeyance. Resultantly these petitions are dismissed but, petitioner is granted two months' time from this day to pay the amount due under the awards in these cases. The warrant of arrest issued to the petitioner will stand in abeyance during the said period of two months. In case the amount due in the cases is not paid within the said period of two months the executing court can proceed with personal execution against petitioner without further enquiry regarding means of petitioner. (THOMAS P JOSEPH, JUDGE) Sbna/-