IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN TUESDAY, THE 18TH NOVEMBER 2008 / 27TH KARTHIKA 1930 CRP.No. 968 of 2007 -------------------------------- EP.75/06 IN OS.417/1997 of MUNSIFF COURT, ETTUMANOOR .................... REVN. PETITIONER/RESPONDENT/JD: VIJAYAN NAIR, S/O.SREEDHARAN NAIR, ASWATHIBHAVAN, ETTUMANOOR VILLAGE, ETTUMANOOR KARA, NOW RESIDING AT VYSAKH, PADINJARE NADA, ETTUMANOOR. BY ADV. SRI.K.GOPALAKRISHNA KURUP RESPONDENT/PETITIONER/DH: GEORGE VARGHESE, S/O.GEORGE, VADASSERIL HOUSE, ERRUMANOOR VILLAGE, KOTTAYAM DISTRICT. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 18/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- C.R.P.No.968 of 2007 -------------------------- ORDER The judgment debtor in E.P.No.75/06 in O.S.No. 417/97 on the file of the Munsiff's Court, Ettumanoor has preferred this revision assailing the order of the court below passed in E.P.No. 75/06, wherein, it was held that the petitioner/ judgment debtor is having means to pay the decree debt and has wilfully neglected to pay the same and consequently ordering him to be detained in civil prison for a period of three months subject to Section 57 of the Code of Civil Procedure. Order of arrest warrant was also issued against him. 2. Despite issuance of notice to the respondent/decree holder, he has not entered appearance. Heard the submissions of the counsel for the petitioner/judgment debtor. 3. It is contended by the counsel for the petitioner/judgment debtor that in the enquiry CRP 968/07 2 regarding means before the execution court, both sides have not produced any evidence and there is only oath against oath; that PW1, the decree holder and DW1, the judgment debtor alone were examined and that the decree holder has given evidence that the judgment debtor is having business and has a monthly income of Rs.10,000/-, whereas, according to the petitioner/judgment debtor, he is not having any business and income and is a T.B. patient and is having no means to pay the decree debt. Even in the objection filed by the petitioner/judgment debtor to Rule 37 notice, his case is that he is being maintained by his son, who is an autorickshaw driver. Even that son was not examined. There is no evidence regarding the illness of the judgment debtor. He must certainly be maintaining his wife and children, who are not employed otherwise. It was, in the circumstances, that the decree holder's evidence was accepted by the court below and personal execution was allowed. I am of the view CRP 968/07 3 that sufficient evidence has not been adduced either by the decree holder or by the judgment debtor and that the matter, in the circumstances, deserves to be remanded setting aside the order impugned. In the result, I dispose of this revision setting aside the impugned order and remit the case back to the execution court for consideration of the question of means of the petitioner/judgment debtor afresh and pass orders before proceeding with personal execution against him. 18th November, 2008 (K.P.Balachandran, Judge) tkv