IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 15TH MARCH 2010 / 24TH PHALGUNA 1931 WP(C).No. 33800 of 2009(O) ------------------------------------- AGAINST THE ORDER IN EP 124/07 IN OS.120/1998 of SUB COURT, PATHANAMTHITTA . .................... PETITIONER(S): ----------------------- ANILKUMAR.R., S/O.RAMACHANDRAN NAIR, AGED 36 YEARS, ANIL BHAVAN, IRAVAN MURI, IRAVON VILLAGE, KONNI, PATHANAMTHITTA DISTRICT. BY ADVS.MR.ABRAHAM SAMSON SMT.LOVELY SAMSON RESPONDENT(S): ------------------------- S.VIJAYAMOHANAN, THILAKIL HOUSE, MANGARAM MURI, KONNY VILLAGE, PATHANAMTHITTA DISTRICT. ADV. MR.SHAJI P.CHALY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.33800/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 25.9.2009 IN EP. 124/07 IN OS. 120/1998 OF THE SUB COURT, PATHANAMTHITTA. P2:- COPY OF THE ORDER DTD. 9.6.2009 IN EP. 124/2007 IN OS. 120/1998 PASSED BY THE COURT OF THE SUBORDINATE JUDGE, PATHANAMTHITTA. TRUE COPY P.A. TO JUDGE tss P. BHAVADASAN, J --------------------------- W.P.C.No.33800 OF 2009 --------------------------------------------- Dated this the 15th day of March, 2010 J U D G M E N T In this writ petition under Article 227 of Constitution of India, the petitioner challenges the legality of Ext.P1 order dated 25.9.2009. 2. Petitioner, the defendant in O.S.120/1998 before the Sub Court, Pathanamthitta suffered a decree. The decree was put in execution. It seems that to the notice under order XXI rule 37 the petitioner put forward the plea of no means. 3. The court below took evidence in the matter and passed the impugned order. 4. The learned counsel appearing for the petitioner pointed out that the order does not contain any reasons. His contentions are not referred to. It was without adverting to WPC.33800/09 2 the contentions and evidence that the order has been passed. 5. Per contra learned counsel appearing for the respondent pointed out that the petitioner is well to do person and he has already paid Rs.1,25,000/- towards decree debt. Therefore, there is no meaning in saying that he has no means to pay the decree debt. 6. Whatever that be, fact remains that evidence was adduced on petition before the court below. Unfortunately the court below has not discussed the evidence and there is no finding as to means of judgment debtor to pay the judgment debt, assets which he possess and source from which he could have been raised funds etc. The order cannot be sustained. In the result, this writ petition is allowed. The Impugned oder is set aside. The matter is remitted back to WPC.33800/09 3 the court below for fresh consideration in accordance with law and what has been stated above and the court below is directed to dispose of the matter as expeditiously as possible at any rate within a period of two months from the date of receipt of copy of this judgment. If the parties so choose, they may adduce further evidence. P. BHAVADASAN, JUDGE. Sou.