IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 27TH JANUARY 2009 / 7TH MAGHA 1930 CRP.No. 401 of 2006() ------------------------------- AGAINST THE ORDER DATED 16/11/2005 IN EP.28/2005 IN OS.753/2000 of PRL.M.C.KOZHIKODE-I .................... REVN. PETITIONER: PETITIONER & DECREE HOLDER. ------------------------------------------------ SREEJITH @ KUTTAN, AGED 30 YEARS, S/O.SREENIVASAN, OWN AFFAIRS, KUTTIYIL VEEDU, EDAKKADU AMSOM AND DESOM OF KOZHIKODE TALUK. BY ADV. SRI.JACOB ABRAHAM RESPONDENT(S): RESPONDENT & JUDGMENT DEBTOR. -------------------------------------------- C.K.SURENDRA BABU, AGED 32 YEARS, S/O.APPU, CONCRETE WORKER, KORANHIVAYAL HOUSE, EDAKKDU AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID, J. -------------------------------- C.R.P. NO. 401 OF 2006 ---------------------------------- Dated this the 27th day of January, 2009 O R D E R The revision petitioner is the decree holder in E.P.No.28 of 2005 in O.S.No.753 of 2000 on the file of the Munsiff Court-I, Kozhikode. In execution, notice was issued under Order 21 Rule 37(1) and on his non-appearance, warrant of arrest was issued against him. The respondent was arrested and brought before the court. On appearance, he filed an affidavit stating that he has no means to pay off the decree debt. Before granting an opportunity to the decree holder to show that he is a man of means, the execution court examined the judgment debtor and passed the impugned order finding that he has no means to pay off the decree debt. C.R.P.No.401 of 2006 - 2 - 2. The counsel for the decree holder submitted that the court below failed to comply with the procedure prescribed under Order 21 Rule 40. The counsel submitted that the execution court did not proceed to hear the decree holder and take all such evidence, the decree holder wish to adduce in support of his application and therefore, the impugned order may be set aside. The court below observed after taking the evidence of the judgment debtor that he has no means to pay off the decree debt and also further observed that the execution petition filed by the decree holder is to harass the judgment debtor. It is strange to note the observation that filing of execution petition by the decree holder for executing the decree obtained by him is to harass the judgment debtor knowingfully well that he has no sufficient means to pay off the decree debt. Therefore, the finding that the judgment debtor has no means to pay off the decree debt is set aside. The execution court is directed to afford an opportunity to the decree holder to C.R.P.No.401 of 2006 - 3 - substantiate his contentions and shall follow strictly the procedure contemplated under Order 21 Rule 40 before passing final orders. The execution petition shall be disposed of within a period of four months from the date of receipt of a copy of this order. The parties shall appear before the execution court on 12th February, 2009. The Civil Revision Petition is disposed of as above. There will be no order as to costs. HARUN-UL-RASHID, JUDGE skr