IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST DECEMBER 2011 / 10TH AGRAHAYANA 1933 CRP.No. 179 of 2011() --------------------- AGAINST THE ORDER DATED 18/12/2010 IN E.P.256/2007 IN OS.205/1998 of PRINCIPAL SUB COURT,ERNAKULAM .................... REVN. PETITIONER/JUDGMENT DEBTOR NO.1. ----------------------------------------- M.C.RAJAN, AGED 54 YEARS, S/O. EMMANUEL, POOMTHOTTATHIL HOUSE, CHOTTANIKKARA P.O., KOCHI - 682 312. BY ADV. SRI.V.V.SIDHARTHAN, SENIOR ADVOCATE SRI.D.G.VIPIN RESPONDENTS/RESPONDENTS/JUDGMENT DEBTOR 1 TO 3. -------------------------------------------------- 1. THE DHANALAKSHMI BANK LTD., SHANMUGHAM ROAD BRANCH, KOCHI - 682 011, REPRESENTED BY CHIEF MANAGER, SRI.R.S.RAMAKRISHNAN. 2. MRS. JANCY RAJU, AGED 45 YEARS, W/O. M.C.RAJAN, POOMTHOTTATHIL HOUSE, CHOTTANIKKARA P.O., KOCHI - 682 312. 3. M/S. COCHIN STOCK EXCHANGE LTD., MES COMPLEX, 4TH FLOOR, JUDGES AVENUE, KALOOR, KOCHI - 17, REPRESENTED BY EXECUTIVE DIRECTOR. ADV. SRI.VIVEK VARGHESE P.J. FOR R1 SRI.KOSHY GEORGE FOR R3 THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP.No. 179 of 2011 APPENDIX PETITIONER'S EXHIBITS: Annexure-1: A TRUE COPY OF the CERTIFIED COPY OF EXHIBITA-1 AUTHORISATION LETTER DTD 05.08.2008 MARKED IN THE IMPUGNED ORDER Annexure-2: A TRUE COPY OF the PROOF AFFIDAVI DTD 27.06.2009 FILED BY THE DECREEHOLDER/1st RESPONDENT IN E.P.NO.256/2007 IN O.S.NO.205/1998 OF the SUB COURT, ERNAKULAM Annexure-3: A TRUE COPY of the CERTIFIED COPY OF THE DEPOSITION OF CROSS EXAMINATION OF PW-1 IN E.P.NO.256/2007 IN O.S.NO.205/1998 OF the SUB COURT, ERNAKULAM Annexure-4: A TRUE COPY OF the CERTIFIED COPY OF the B'DIARY PROCEEDINGS IN E.P.NO.256/2007 IN O.S.NO.205/1998 OF the SUB COURT, ERNAKULAM Annexure-5: A TRUE COPY OF THE CERTIFIED COPY OF the EXHIBIT A-3 MARKED IN the IMPUGNED ORDER IN E.P.NO.256/2007 IN O.S.NO.205/1998 OF the SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: NIL /True Copy/ P.A to Judge THOMAS P. JOSEPH, J. ---------------------------------------- C.R.P.No.179 of 2011 --------------------------------------- Dated this 01st day of December, 2011 ORDER Petitioner is judgment debtor-I in E.P.No.256 of 2007 in O.S.No.205 of 1998 of the Court of learned Sub Judge, Ernakulam aggrieved by the order dated 18.12.2010 finding means against him and issuing warrant of arrest. It is contended by learned counsel for petitioner that means of petitioner is not proved and that petitioner did not get any opportunity to adduce evidence. Learned counsel for first respondent contends that petitioner had the opportunity to adduce evidence and that there is sufficient evidence which is binding on petitioner that he has means. 2. It would appear that evidence of the first respondent regarding means was recorded by the executing court even before a copy of the application under Rule 37 of Order XXI of the Code of Civil Procedure (for short, "the Code”) was served on petitioner. PW1 gave evidence on behalf of the first respondent and claimed that petitioner has business investment of about `.10,00,000/-, apart from his owning 55 cents at Chottanikkara which is valued at `.25,00,000/- as revealed by Ext.A3, statement C.R.P.No.179 of 2011 -: 2 :- of assets and liability at the time of transaction. It is based on that evidence that the executing court found means of petitioner. 3. Now, to the contention that petitioner did not get sufficient opportunity it is seen from Annexure-4, photocopy of B diary that it was on 19.08.2010 that the executing court directed first respondent to give notice under Order XXI, Rule 37 of the Code to the petitioner and the matter was posted for objection if any on 08.10.2010. By that time, evidence of the first respondent had already been recorded. On 08.10.2010 petitioner preferred objection to the notice under Rule 37 of Order XXI of the Code pleading no means. The case was then posted on 09.11.2010 when it is recorded that the first respondent is not ready and the case was posted for evidence of petitioner on means on 10.11.2010. That day, executing court recorded evidence of the first respondent. It is also recorded that there was no further evidence and both sides were heard. In the above circumstance, I am inclined to think that petitioner could be given an opportunity to adduce evidence regarding his plea of means but subject to condition; Resultantly this civil revision is allowed as follows: (i) The civil revision will stand allowed, the order dated 18.12.2010 in E.P.No.256 of 2007 C.R.P.No.179 of 2011 -: 3 :- in O.S.No.205 of 1998 of the Court of learned Principal Sub Judge, Ernakulam will stand set aside and E.P.No.256 of 2007 will stand remitted to the Court of learned Sub Judge for fresh decision on the issue regarding means after giving opportunity to the parties to adduce further evidence on condition that petitioner pays/deposits in the executing court for payment to the first respondent `.1,00,000/- (Rupees One Lakh Only) within one month from this day. (ii) In case the above condition is not complied this civil revision will stand dismissed in confirmation of the order under challenge. (THOMAS P. JOSEPH, JUDGE) Sbna/-