IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 5470 of 2009(O) ------------------------------------- (OS. NO.186/2004 OF MUNSIFF COURT, PEERUMEDU) .................... PETITIONER: ------------------- AUGUSTHY JOSEPH, S/O. VARKEY JOSEPH, KAVETTU VEEDU, KOTHAPARA, UPPUTHARA. BY ADV. MR.T.I.ABDUL SALAM. RESPONDENT: ---------------------- PAUL THOMAS, S/O.A.T. THOMAS, EARATHU VEEDU, UPPUTHARA.P.O, IDUKKI DISTRICT. BY ADV. MR.PAUL K.VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.5470/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ENTIRE PROCEEDINGS IN E.P. NO. 29/2005 IN O.S. NO. 186/2004 OF THE MUNSIFF'S COURT, PEERMADE. EXT.P.2: COPY OF THE JUDGMENT DTD. 10/04/2008 IN W.P.(C).NO.12614/2008 OF THE HONOURABLE HIGH COURT OF KERALA. EXT.P.3: COPY OF THE OBJECTION DTD. 11/07/2008 FILED BY THE PETITIONER IN E.P. NO. 29/2005 IN O.S. NO.186/2004 OF THE MUNSIFF'S COURT, PEERMADE. EXT.P.4: COPY OF THE PROOF AFFIDAVIT DTD. 25/10/2008 FILED BY THE PETTITIONER IN E.P. NO. 29/2005 IN O.S. NO. 186/2004 OF THE MUNSIFF'S COURT, PEERMADE. EXT.P.5: COPY OF THE ORDER DTD. 17/01/2009 IN E.P. NO. 29/2005 IN O.S. NO. 186/2004 OF THE MUNSIFF'S COURT, PEERMADE. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.5470 of 2009 - O --------------------------------- Dated this the 20th day of July, 2009 J U D G M E N T This writ petition is filed seeking the following relief: “To issue a writ of certiorari or other appropriate writ, order or direction quashing Exhibit P5 after calling for the records relating to the same.” 2. Petitioner is the judgment debtor in E.P.No.29/2005 in O.S.No.186/2004 on the file of the Munsiff Court, Peerumedu. Respondent is the decree holder, and the decree was passed in a suit for money. Resisting the execution of the decree, the petitioner/judgment debtor contended that he has no means. Previously, negativing that contention the executing court passed an order that he has sufficient means, and that order was challenged before this Court, which gave rise to Ext.P2 judgment. The previous challenge was disposed under Ext.P2 judgment directing the judgment debtor to remit a sum of Rs.10,000/- and if that was done, the execution court was directed to hear and consider the objections raised on the execution of the decree on W.P.(C).No.5470 of 2009 - O 2 his plea of no means afresh and to pass appropriate orders. The amount directed to be remitted was complied with by the judgment debtor. The learned Munsiff, thereafter proceeded with the enquiry in the matter in which the decree holder and also the judgment debtor were examined. On the side of the decree holder A1 was exhibited and for the judgment debtor B1 and B2, towards documentary evidence substantiating their respective cases. The learned Munsiff after considering the materials produced in the enquiry, came to a conclusion that the judgment debtor is possessed of sufficient means to discharge the decree debt and accordingly Ext.P5 order was passed repelling his plea of no means and directing for issuing warrant against him. Propriety and correctness of that order is impeached in the present petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. 3. The learned counsel for the petitioner assailed the impugned order, a copy of which is produced as Ext.P5, contending that the learned Munsiff entered a finding on the W.P.(C).No.5470 of 2009 - O 3 question of no means raised by the judgment debtor solely on the basis of remittance of Rs.10,000/- made by him, pursuant to the direction given by this Court in Ext.P2 judgment. The materials tendered in the case was misappreciated and that has led to wrong conclusions resulting in grave injustice, is the submission of the counsel. On the other hand, the learned counsel for the decree holder contended that there is no merit in the petition and Ext.P5 order deserves only to be confirmed. 4. After hearing the counsel on both sides at length and taking note of the facts and circumstances presented with reference to Ext.P5 order impugned in the petition, I find no illegality or impropriety in that order warranting interference in exercise of the visitorial jurisdiction conferred on this court. Learned Munsiff has taken note that after the death of the father of the judgment debtor as legal heir, along with his mother he has got right over one acre of property. Ext.B2 is the copy of the commission report prepared in another suit relating to that property. According to the learned Munsiff, it disclosed that cultivations are carried out there and it is capable of generating W.P.(C).No.5470 of 2009 - O 4 sufficient income. So, evidently, the learned Munsiff was satisfied that at the time when the judgment debtor set up a plea of no means he has joint right over one acre of property with his mother, which devolved upon them on the death of his father. Ext.P5 order passed by the learned Munsiff to reach the conclusion that the plea of no means canvassed by the judgment debtor cannot be accepted in the given facts of the case, is found to be proper, correct and valid. I find no illegality in Ext.P5 order and the writ petition is devoid of any merit, and it is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-