IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 CRP.No. 506 of 2008() --------------------------------- (AGAINST THE ORDER DATED 28/03/2008 IN E.P.261/2006 IN O.S.867/2003 OF 2ND ADDITIONAL MUNSIFF COURT,TRIVANDRUM) REVISION PETITIONERS: JUDGEMENT DEBTORS: -------------------------------------------------------------------------- 1. MOHANAKUMARAN NAIR.V., CHANDRIKA BHAVAN, A.K.NAGAR, CHEMPAZHANTHY P.O. THIRUVANANTHAPURAM. 2. C.SUSEELA, W/O.KRISHNANKUTTY, KULATHINKARA VEEDU, MANGANOORKONAM, PATTOM.P.O., THIRUVANANTHAPURAM. 3. R.P.PRABHAKUMARI, W/O.MOHANARAJAN ASARI, PRIYA NIVAS, ARUVACODE, PAPPANAMCODE, THIRUVANANTHAPURAM. BY ADV. SRI.D.SAJEEV RESPONDENT: DECREE HOLDER: --------------------------------------------------- THE STATE BANK OF TRAVANCORE, KESAVADASAPURAM BRANCH, THIRUVANANTHAPURAM REPRESENTED BY ITS CHIEF MANAGER, PADMINI, W/O.NARAYANA SWAMI, T.C.26/153(4), EANCHAKKAL, VALLAKKADAVU P.O., THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 27/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss ORDER ON I.A.NO.1460/2008 IN C.R.P.NO.506/2008 DISMISSED 27/08/2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss M. SASIDHARAN NAMBIAR, J. ------------------------------------------ C.R.P. NO.506 OF 2008 ------------------------------------------ Dated this the 27th day of August, 2008 O R D E R Petitioners are the judgment debtors and respondent the decree holder in O.S. 867 of 2003. E.P.261 of 2006 was filed for realisation of the decree debt by arrest and detention of the judgment debtor. As per order dated 28.3.2008, finding that petitioners have means, learned Munsiff passed an order directing arrest of judgment debtors 1 to 3, the petitioners herein. That order is challenged in this petition filed under Section 115 of Code of Civil Procedure. 2. Learned counsel appearing for petitioners and respondent were heard. 3. Petitioners/judgment debtors 2 and 3 are ladies. Though the impugned order shows that third respondent is R.P. Prabhakaran, learned counsel appearing for petitioners made available the copy of the judgment, which shows that third respondent is not Prabhakaran but Prabhakumari W/o Mohanrajan Asari. Learned Munsiff omitted to take note of the CRP506/08 2 provision under Section 56 of Code of Civil Procedure prohibiting an order of arrest or detention in civil prison of a woman in execution of a decree for payment of money. Therefore the order of arrest of petitioners/judgment debtors 2 and 3 is per se illegal and is set aside. 4. First petitioner is the principal debtor. Though he contended that he has no means, on the evidence of the decree holder as PW1 and first petitioner as DW1, learned Munsiff found that DW1 admitted that petitioner retired from KSRTC in 2004 and he received all the pensionary benefits and inspite of receipt of that amount he did not pay any portion of the decree debt and so he wilfully neglected or refused to pay the decree debt and so he is liable to be arrested. Learned Munsiff also found that evidence of PW1 that first petitioner is owning immovable property, was not challenged in cross-examination and evidence as DW1 also does not establish that he is not having sufficient means. It is on that evidence learned Munsiff found that first petitioner has sufficient means. I do not find any illegality or irregularity warranting interference in exercise of revisional powers of this Court on that finding. Learned counsel appearing for petitioners then submitted that first petitioner is CRP506/08 3 physically handicapped to the extent of 60% and he cannot be detained in a prison. The question whether first petitioner could be detained in prison is to be decided by learned Munsiff after conducting an inquiry under Rule 40 of Order XXI of Code of Civil Procedure. Petitioner is entitled to bring to the notice of the executing Court his handicap at that time. Revision petition is disposed accordingly. M. SASIDHARAN NAMBIAR, JUDGE Okb/-