IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 26TH JUNE 2009 / 5TH ASHADHA 1931 WP(C).No. 25517 of 2007(K) -------------------------- OS.29/1992 of PRINCIPAL SUB COURT,ERNAKULAM .................... PETITIONER(S): ------------------------ K.J.RAGHU, S/O. K.J.JINARAJAN, AGED 45 YEARS, KUKKUVAYIL HOUSE, PULLEPPADY, ERNAKULAM, COCHIN - 35. BY ADVS. MR.ZAKEER HUSSAIN, SMT.K.A.SANJEETHA. RESPONDENT(S): --------------------------- 1. M/S. NILAN ENTERPRISES, REPRESENTED BY ITS MANAGING PARTNER, N.A.VARGHESE, AGED 51 YEARS, S/O. NILAVARATHU ANTHA, NILAVARATHU HOUSE, KOCHI - 17. 2. M/S. SARASWATHI AGENCIES, K.P.R.RAO ROAD, REPRESENTED BY ITS PROPRIETOR, K.SREEDHARAN, AGED ABOUT 49, K.P.RAO ROAD, KASARAGODE. 3. K.J.DILIP, BUSINESS MAN, AGED ABOUT 44, FORMER PARTNER OF M/S. HOME CLUB SERVICE, MAYI, R.N.H.ROAD, SASTHAMANGALAM, THIRUVANANTHAPURAM - 695 010. BY ADV. MR.K.K.VIJAYAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.25517/2007 K APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE E.P.NO.291/2005 IN O.S.NO.29/1992 OF PRINCIPAL SUB COURT, ERNAKULAM. P2: COPY OF THE OBJECTION DTD. 30/08/2006 FILED BY THE PETITIONER IN E.P.NO.291/2005 IN O.S.NO.29/1992 OF PRINCIPAL SUB COURT, ERNAKULAM. P3: COPY OF THE AFFIDAVIT FILED BY THE RESPONDENT IN E.P.NO.291/2005 IN O.S.NO.29/1992 OF PRINCIPAL SUB COURT, ERNAKULAM. P4: COPY OF THE ORDER DTD. 25/10/2006 IN E.P.NO.291/2005 IN O.S.NO. 29/1992 OF PRINCIPAL SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.25517 of 2007 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 26th June, 2009 JUDGMENT The judgment debtor in E.P.No.291/05 in O.S.No.29/92 on the file of the Sub Court, Ernakulam has filed this Writ Petition impeaching the correctness of the order passed by the learned Sub Judge directing the issue of a warrant against him and his detention in civil prison for a period of six months on his default to pay the decree debt. Ext.P4 is the copy of the order challenged in the petition. The petitioner/judgment debtor setting up of a plea of no means, the decree holder examined its managing partner to prove that he is possessed of sufficient means and capable of discharging the decree debt. No counter evidence was let in by the judgment debtor though he raised a plea of no means. Learned counsel for the petitioner submitted before me that the decree holder did not produce any documentary evidence to substantiate his case to prove the capacity of the judgment debtor to discharge the decree debt and, further, to disprove his plea of no means. I am not impressed by the submission. The evidence of the decree holder that he is possessed of sufficient means remains uncontroverted. In that circumstance, the learned Sub Judge was justified in passing Ext.P4 W.P.C.No.25517/07 - 2 - order holding that the plea of no means canvassed by the judgment debtor is unacceptable. However, I notice that the period of detention ordered by the learned Sub Judge is against the legislative mandate covered under Section 58(1) of the C.P.C. The maximum period of detention in respect of decree for the payment of a sum of money exceeding Rs.5000/- is three months, whereas, the learned Sub Judge has ordered for the detention of the judgment debtor for a period of six months, which is impermissible. So much so, the period of detention fixed by the learned Sub Judge is modified and reduced to three months in consonance with the above provision of the C.P.C. and the Writ Petition is dismissed subject to the above modification of Ext.P4 order. srd S.S. SATHEESACHANDRAN, JUDGE