IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 13TH FEBRUARY 2009 / 24TH MAGHA 1930 CRP.No. 727 of 2008() --------------------- AGAINST THE ORDER DATED 21/06/2008 IN EP 1337/2007. IN OS.614/2004 of III ADDL. MUNSIFF COURT,THRISSUR .................... REVN. PETITIONER(S): DECREE HOLDER ---------------------------------- PADMANABHAN, S/O. PALLIPURAM ITTIRI, NEDUPUZHA DESOM, KANIMANGALAM VILLAGE, THRISSUR DESOM. BY ADV. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA RESPONDENT(S): JUDGMENT DEBTOR ------------------------------ RESOURCE INDIA KURIES (P) LTD., THRISSUR. ADV. SRI.RANJITH XAVIER THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 13/02/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: CRP 727/08 ORDER IN I.A.NO.2203/08 IN CRP NO.727/2008 DISMISSED 13.2.2009 SD/- K.T.SANKARAN, JUDGE /TRUE COPY/ P.A. TO JUDGE K.T.SANKARAN, J. --------------------------------------------- C.R.P.No.727 of 2008 --------------------------------------------- Dated this the 13th day of February, 2009 ORDER The petitioner is the judgment debtor in E.P.No.1337/2007 in O.S.No.614/04 on the file of the III Additional Munsiff’s court, Thrissur. The respondent/decree holder filed E.P.No.1337/07 for realisation of the decree debt by arrest and detention of the judgment debtor. The judgment debtor pleaded no means. In the objection, the judgment debtor stated that he has no sufficient means to pay off the decree debt. The judgment debtor is working in BSNL, Chembukkavu. He stated in the objection that after deduction he is getting only Rs.50/- per month. In the objection, it is stated that the salary certificate was being produced along with counter. But, no such salary certificate was produced. 2. PW1 was examined on behalf of the decree holder for proving means of the judgment debtor. The court below came to the conclusion that the judgment debtor is drawing a salary of Rs.8,000/- per month. No oral evidence was adduced by the judgment debtor before the executing court. On the available CRP No.727/2008 2 evidence, the court below came to the conclusion that the judgment debtor has sufficient means to pay off the decree debt. Accordingly, the order impugned was passed to issue warrant of arrest against the judgment debtor. 3. Counsel for the petitioner submitted that though the salary certificate was produced before the court below, it was not taken note of or considered by the court below. This court called for a report from the executing court as to why the document was not referred to. The learned Munsiff in his report stated that the case was posted for evidence on 25.3.2008. On that day, evidence on the side of the decree holder was over. The case was adjourned to 31.5.2008. There was no sitting on that day and the case was adjourned to 12.6.2008. There was no oral evidence on the side of the judgment debtor. The case was heard and it was taken for orders. The learned Munsiff came to know about the production of the salary certificate only after receiving the official memorandum from this Court. It is pointed out by the learned Munsiff that at the time of arguments, the counsel for the judgment debtor did not refer to the salary certificate. The judgment debtor was not examined and the CRP No.727/2008 3 salary certificate was not marked. The salary certificate was produced after the evidence was closed. In these circumstances, the court cannot be blamed for not perusing or considering the salary certificate and the blame should go to the judgment debtor alone. 4. As per the interim order passed by this Court, the judgment debtor had paid a sum of Rs.15,000/- towards the decree debt. Now the only request made by the judgment debtor is to afford an opportunity to adduce evidence to show that he has no means to pay the decree debt. The burden of establishing the particulars of the salary is certainly on the judgment debtor. Though enough opportunity was granted to the judgment debtor, he did not adduce evidence. It is pointed out that the judgment debtor is getting only a meager amount as salary. By way of extreme leniency, I am inclined to grant an opportunity to the judgment debtor to adduce evidence and to produce documents, on condition that he shall deposit a sum of Rs.25,000/- for payment to the decree holder, within a period of one month. If he fails to deposit the said amount, the order impugned will be in force and the C.R.P. will stand dismissed. If the amount is CRP No.727/2008 4 deposited within time, the executing court shall afford an opportunity to the petitioner/judgment debtor to adduce evidence and to produce documents. The decree holder shall have an opportunity to adduce such rebuttal evidence as found necessary. The order passed by the court below is set aside to enable the petitioner/judgment debtor to adduce evidence, subject to the stipulations mentioned above. The C.R.P. is disposed of accordingly. K.T.SANKARAN, JUDGE csl