IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 7466 of 2008(L) ------------------------- E.P.266/07 IN OS.416/2004 of MUNSIFF COURT, N.PARAVUR .................... PETITIONER: ------------ SEBASTIAN (DEVASSY), AGED 64, S/O.MATHAI, MARATHONTHARA VEEDU, KADALVATHURUTHU KARA, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. BY ADV. SRI.P.N.RAMAKRISHNAN NAIR SRI.P.VISWANATHAN SRI.AJU MATHEW RESPONDENT: ------------- SIPSON, AGED 45, S/O.UTHUP, PAYNEDATHU VEEDU, KADALVATHURUTHU KARA, GOTHURUTH, CHENDAMANGALAM VILLAGE, PARAVUR TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ---------------------- W.P.(C)No. 7466 OF 2008 ----------------------------- DATED THIS THE 4TH DAY OF MARCH, 2008 J U D G M E N T This writ petition is preferred against the order of the Munsiff Court, North Paravur in E.P.No.266/07 in O.S.No.416/04. The Court below held that the judgment debtor is having means and ordered arrest. It was only an oath against oath available before the Court. The acceptable part was to the effect that there is a house in 10 cents of property wherein the judgment debtor is living and therefore the Court held that he can be proceeded against as the amount due is capable of being raised on the basis of that property. But the Court has lost sight of the fact that the judgment debtor has categorically denied his ownership over the property and has specifically raised a contention that it belongs to his wife. So, there was a duty cast upon the decree holder to prove the said factum. The Court below was not very much satisfied with the other evidence available and therefore came to a conclusion that he has not W.P.(C)No.7466/08 produced documents to show that the property belongs to his wife and that he has not produced document to show that he is having ailments. I feel the Court has not approached the matter correctly and the learned counsel for the writ petitioner would submit that if an opportunity is given, he would establish that the property does not belong to him at all. Even going by the decision of this Court, it is only a rebuttable presumption and therefore I feel that an opportunity is to be given. Therefore the order under challenge is set aside and the matter is remitted back to the Court below with a direction to permit the writ petition to produce documents in support of his contentions. Needless to say that the decree holder also will be entitled to adduce further evidence to prove the means of the judgment debtor. Till a decision is taken on the matter, arrest warrant shall not be issued or executed. The Court shall give notice to the decree holder before finally disposing the matter. M.N.KRISHNAN, JUDGE. dsn