IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 26TH DAY OF OCTOBER 2009 / 4TH KARTHIKA, 1931 WP(C).No. 25305 of 2005 ---------------------------- ( AGAINST THE ORDER IN EP 84/2004 of SUB COURT, TIRUR) PETITIONER: -------------- KARANAMAN BASHEER, S/O.ALIKUNHI, NEDUVA AMSOM, DESOM, P.O.NEVUA, PARAPPANANGADI,, THIRURANGADI TALUK. BY ADV.SRI.K.K.MOHAMED RAVUF RESPONDENT(S): ------------------- ANNACHAMPALLI ASHRAF, S/O.KUNHI MOHAMMED HAJI, THROUGH POWER HOLDER ESSSA HAJI, S/O.KUNNATHAYIL KUNHI MOIDEEN, OMACHAMPUZHA, AMSOM, DESOM, TIRUR TALUK. BY ADV. SRI.A.KRISHNAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).25305/2005 APPENDIX PETITIONER'S EXHIBITS: P1:TRUE COPY OF THE EXECUTION PETITION. P2:TRUE COPY OF THE ORDER DATED 15.6.2005 IN E.PNO.84 OF 2004 OF THE SUB COURT, TIRUR. RESPONDENT'S EXHIBITS:NIL C.T. RAVIKUMAR, J. --------------------------------------------- W.P.(C) NO. 25305 of 2005 --------------------------------------------- Dated this the 26th day of October, 2009 JUDGMENT Petitioner herein is the judgment debtor in OS No.156/02 on the file of the Sub Court, Tirur. The decree holder/respondent herein filed Ext.P1 execution petition before the Execution Court for realisation of a sum of Rs.1,20,195/- with cost by arrest and detention of the judgment debtor. On receipt of notice, the petitioner appeared before the court and contested the petition raising the plea of no means. Thereafter, the respondent herein was directed to adduce evidence to prove the means of the judgment debtor- petitioner herein. He adduced evidence by examining himself as PW1 and on his side Exts. A1 and A2 were marked. No evidence was adduced on the side of the judgment debtor-petitioner herein. After considering the rival contentions and the evidence adduced, the Execution Court passed Ext.P2 order dated 15.6.05. It was found that decree holder had proved the sufficiency of means of the judgment-debtor and his purposeful evasion of payment and W.P.(C) NO.25305 of 2005 2 accordingly warrant has been issued for realisation of the amount by his arrest and detention. It is challenging the said order that this Writ Petition has been filed. 2. The petitioner herein is having half right over 10 ¾ cents of property comprised in Re.Survey Nos.292/2 and 292/4 of the Neduva Amsom and he is the owner of a Yamaha boat were the twin contentions raised by the respondent to discharge the said onus. To substantiate his contentions, he has produced Exts.A1 and A2 and got himself examined as PW1. Ext.A1 is the certified copy of the Assignment Deed No.1470/94 executed by Mohammed in favour of one Siddique and the petitioner herein on 6.7.94 in respect of the aforesaid 10 ¾ cents of property comprised in Re.Sy.Nos.292/2 and 292/4 of the Neduva Amsom. Ext.A2 is the encumbrance certificate obtained in respect of the said property from the Sub Registrar office, Parappanangadi. It is contended that in the property comprised in the aforesaid survey numbers, a residential house is situated. It was contended that Ext.A2 would show that there is no encumbrance over the property covered by Ext.A1 wherein the petitioner is W.P.(C) NO.25305 of 2005 3 having half right and therefore the petitioner is having sufficient means to satisfy the total amount. That apart, it was deposed by the respondent as PW1 that the petitioner is the owner of a Yamaha boat and that he is a fisherman earning Rs.15,000/- per month. It was contended that the property in question is worth Rs.8,00,000/-. The respondent who was examined as PW1 was cross-examined on behalf of the petitioner herein. However, nothing could be elicited to disprove his testimony. Based on the aforesaid evidences, it was contended that the petitioner herein/judgment debtor is having properties, he is employee and therefore is having sufficient means. As noticed hereinbefore, the petitioner did not adduce any evidence. It was in the circumstances that Ext.P2 order was passed by the execution court after considering the materials and evidences. 3. The respondent herein resisted the contentions raised on behalf of the petitioner contending that the petitioner is not entitled to claim that the property in question is not liable to attachment and put in auction in execution of decree by virtue of Section 60(1) (C) of the Code of Civil Procedure (for short W.P.(C) NO.25305 of 2005 4 'the Code'). It is contended that in order to claim benefit of exemption thereunder one should be an agriculturist or labourer or a domestic servant. According to the learned counsel for the respondent, the petitioner herein is not an agriculturist, not a labourer and not a domestic servant and therefore he cannot take shelter under Section 60(1)(C) of the Code and contend that he is a man having no means. The contention of the petitioner is that he is a fisherman. In such circumstances, the rules of evidence relied on by both the parties i.e., he, who asserts must prove relevance. A scanning of the claims and contentions would reveal that in order to avail the benefit under Section 60(1)(C), the petitioner herein claimed that he is a fisherman and according to him, that fact is admitted by the respondent. I have already found that merely because the petitioner has asserted his status as a fisherman, it will not confer him any benefit unless he establishes that by virtue of that status, he is entitled to the benefit of Section 60(1) (C) of the Code. The petitioner is asserting that he is a fisherman and entitled to the benefit under Section 60(1)(C) and therefore, it is W.P.(C) NO.25305 of 2005 5 his burden to prove that he is entitled to the benefit thereunder by virtue of his being a fisherman. But, in this case, the petitioner herein did not adduce any evidence before the execution Court regarding his avocation. His definite case was that he is not having any serious or meaningful avocation and income. There is no evidence at all to show that the petitioner is a fisherman. For the reasons already expatiated above, I cannot accept the contentions of the petitioner that he is a fisherman merely because he had described him so. In the context of the contentions and circumstances, while considering a matter of this nature, the court has a duty to see that whether the judgment debtor is honestly claiming or raising the said contentions. It appears that the petitioner had not discharged his onus successfully and therefore, in the absence of any materials to support his claim, the petitioner cannot be heard to say that merely because he is described as a fisherman that he is entitled to get benefit under Section 60(1) (C) of the Code and that he is having no means. In view of the reasons aforesaid, I cannot countenance with the contentions raised by W.P.(C) NO.25305 of 2005 6 the petitioner. In such circumstances, I do not find any illegality or irregularity in Ext.P2 order. Ext.P2 order was issued after observing all the procedures prescribed under provisions of the Code and therefore, calls for no interference. Accordingly, the Writ Petition is dismissed. Sd/- (C.T. RAVIKUMAR) JUDGE spc