IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 25TH FEBRUARY 2008 / 6TH PHALGUNA 1929 WP(C).No. 6381 of 2008(I) ----------------------------------- AGAINST THE ORDER DATED / / IN EP.41/07 IN AP.237/2000 of III ADDL. DISTRICT COURT, KOLLAM .................... PETITIONER: ------------------- SHARAFUDEEN, S/O.ABDUL KHADERKUNJU, AGED ABOUT 55 YEARS, INCHAKKAL HOUSE, MUNDALUMMOODU, THIRUMULLA VARAM P.O., KOLLAM. BY ADV. SRI.D.SAJEEV RESPONDENTS: ----------------------- 1. M/S.ICDS LTD., MANIPAL, REPRESENTED BY ITS POWER OF ATTORNEY HOLDER G.K.PILLAI, BRANCH OFFICER, KOTTAYAM. 2. P.S.SHAJI, S/O.SHAHUL HAMEED, PUTHENVEEDU, THAICKAL P.O., CHERTHALA, ALAPPUZHA DISTRICT. 3. RAHIM, S/O.ALIARKUNJU, CHIPPI MANZIL, PUNNATHALA, KOLLAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. --------------------------- W.P.(C) No. 6381 OF 2008 -------------------------- Dated this the 25th day of February, 2008 J U D G M E N T ~~~~~~~~~~~ This writ petition is preferred against the order of the III Additional District Judge, Kollam in E.P.No.41/2007 in A.P.No.237/2000. By an arbitrale award, an amount of Rs. 3,64,353/- is to be paid jointly by judgment debtors 1 to 3 in the case. It is seen from the records that the previous execution petition had been dismissed and now arrest warrant is ordered against the 3rd judgment debtor, namely, the writ petitioner herein, on the ground that he is having sufficient means and is intentionally evading the payment. It is stated that he is running a ration shop and that he is having 1 ½ cents of property. On the basis of these two, the court below found means and ordered to arrest the person. It is true that the writ petitioner is having 1 ½ cents of land. When a question was put to him, whether it will fetch Rs. 43 lakhs, it has been categorically denied. The court below has not arrived at a decision regarding the value that will be fetched by the said property. So also the court has not arrived at any W.P.(C) No.6381/2008 2 finding regarding the income from the ration shop. 2. The learned counsel for the writ petitioner submits before me that he has got a wife and children to be looked after and with the meager income derived from the ration shop, he is unable to meet both ends and therefore, finding of the court below on the question of means is to be interfered with. I find there is some force. But at the same time, more evidence should have been lead in by judgment debtor to prove his incapacity, when the decree holder has tendered some evidence to show about conducting of a ration shop as well as the ownership of the property. 3. Inorder to facilitate to supply better evidence, I set aside the order passed by the court below and remit back the case to the civil court with an opportunity to the writ petitioner to adduce further evidence in support of the plea of no means. 4. Needless to say, the decree holder also shall be permitted to produce additional evidence and thereafter, the court to consider and dispose of the matter W.P.(C) No.6381/2008 3 in accordance with law. The court shall give notice to the decree holder on the appearance of the 3rd judgment debtor and the 3rd judgment debtor is directed to appear before the court on 25.3.3008. Till a final decision is taken on the matter he shall not be arrested and detained. The writ petition is disposed of as above. (M.N.KRISHNAN, JUDGE) ps