IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN TUESDAY, THE 17TH FEBRUARY 2009 / 28TH MAGHA 1930 WP(C).No. 27189 of 2008(J) -------------------------- AGAINST THE ORDER DATED 08/07/2008 IN EP 137/2007 IN OS.181/2005 of PRL.MUNSIFF COURT, KOTTAYAM .................... PETITIONER(S): --------------- JISON VARGHESE, S/O.SUNNY VARGHESE PUTHUPPARAMBIL, PARK LANE, KOTTAYAM. BY ADV. SRI.V.K.SUNIL RESPONDENT(S): --------------- 1. KARAPPARA CHITTY FUND, VAKATHANAM REPRESENTED BY ITS PARTNER JOHN K. JOHN, KARAPPARA VETTIYIL, VAKATHANAM P.O. 2. MANOJ BAKER, S/O. T.BAKER FENN THOPPIL, VAZHOOR. ADV. SRI.JAMES KURIAN FOR R1 SRI.SANTHOSH MODAYIL FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 27189/08 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE AFFIDAVIT FILED BY THE FIRST RESPONDENT BEFORE THE COURT BELOW. EXT.P2: COPY OF THE OBJECTION FILED BY THE PETITIONER. EXT.P3: COPY OF THE ORDER PASSED BY THE LEARNED PRINCIPAL MUNSIFF, KOTTAYAM IN E.P.NO.137/07 DATED 8.7.2008. /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- W.P.(C).No.27189 of 2008 --------------------------------------------- Dated this the 17th day of February, 2009 JUDGMENT The petitioner, who is the first judgment debtor in E.P.No.137/07 in O.S.No.181/05 on the file of the court of the Principal Munsiff, Kottayam, challenges the order dated 8th July 2008 by which the court below rejected the plea of no means raised by him. The execution petition was filed for realisation of a sum of Rs.1,22,322/- by the arrest and detention of the Writ Petitioner. In the affidavit accompanying the execution petition, it was contended that the Writ Petitioner runs a bakery at Kottayam town and runs another hotel and bakery at Kottayam. It is also stated in the affidavit that he gets a total income of Rs.12,0000/- per month from these business concerns. 2. The Writ Petitioner filed objections. He contended that he does not own or possess any bakery or hotel. He stated that he does not have any item of immovable property or any source of income. When the Writ Petitioner was arrested and produced, an enquiry was conducted by the court below and it WPC No.27189/2008 2 was held that the Writ Petitioner is not sick or infirm. It was also held by the court below that the judgment debtor (Writ Petitioner) is having sufficient means to satisfy the decree and that he is willfully neglecting or refusing to pay the decree amount. Taking into account the payment of Rs.10,000/- made by the Writ Petitioner, the court below granted an opportunity to him to pay the decree amount and he was released on executing a bond. 3. The decree holder has not adduced any evidence to prove that the Writ Petitioner has means to pay the decree debt. Nobody was examined on the side of the decree holder and no documentary evidence was produced. The judgment debtor also did not adduce any evidence. It is not clear from the order on what materials the court below came to the conclusion that the judgment debtor has the means to pay the decree debt. 4. The proviso to Section 51 of the Code of Civil Procedure provides that a person shall not be arrested and detained in civil prison unless the court is satisfied that the judgment debtor has or has had had since the date of the decree, the means to pay the amount of the decree debt or a sufficient WPC No.27189/2008 3 portion thereof and he has neglected or refused to pay the same. The court below has not arrived at any finding touching upon the ingredients of the proviso to Section 51 CPC. The findings in the order impugned were arrived at on no evidence. 5. The learned counsel appearing for the first respondent decree holder submitted that the Writ Petitioner had filed an undertaking that he would pay the decree debt in monthly instalments of Rs.10,000/- and accordingly, he had paid Rs.40,000/-. For the reasons mentioned above, the order dated 8th July 2008 is set aside. The court below shall dispose of the Execution Petition afresh after affording an opportunity to both parties to adduce evidence and to produce documents. The legal effect of the undertaking, if any, made by the petitioner/judgment debtor will be taken note of while disposing of the Execution Petition. The court below shall dispose of the matter as expeditiously as possible. K.T.SANKARAN, JUDGE csl