IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 28TH FEBRUARY 2008 / 9TH PHALGUNA 1929 WP(C).No. 6984 of 2008(F) ------------------------------------- O.S. NO.560/2000 OF II ADDL.SUB COURT,THRISSUR. .................... PETITIONER: ------------------- NARAYANAN S/O.THANDENGATTIL KUNJIKRISHNAN, P.O.KALLUR VADAKKEKKAD VILLAGE, DESOM, CHAVAKKAD TALUK THRISSUR. BY ADV. SRI.K.N.PADMAKUMAR. RESPONDENT: ---------------------- ABOOBACKER, S/O.MANKUNNATH MUHAMMAD P.O.KALLUR, VADAKKEKKAD VILLAGE, DESOM CHAVAKKAD TALUK, THRISSUR. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 6984 OF 2008 = = = = = = = = = = = = = = = Dated this the 28th day of February, 2008. J U D G M E N T This writ petition is preferred against the order of the Subordinate Judge, Thrissur in E.P.460/06 in O.S.560/00. The decree holder has obtained a decree for realisation of Rs.2,52,674/-. The prayer is to arrest and detain the judgment debtor for intentional evadement of payment. The decree holder was examined. He would depose that the judgment debtor is having property, having an extent of 6 and 1/8 cents and is also an employee of AS Agencies at Manikandeswaram getting a salary of Rs.4,500/-. 2. On the other hand the respondent would contend that he is not getting sufficient income and is not having properties alleged by the petitioner. He would submit that he is an employee of AS Agencies but his income is only Rs.800/- per month. Unfortunately, the Court below proceeded with the matter as if the burden is on the W.P.C 6984 OF 2008 -:2:- judgment debtor to negative the plea of means. When it is extracted that the judgment debtor has denied about the ownership of the property some evidence should have been let in in the matter. Similarly when he controverts the evidence of PW1 regarding the income the burden is squarely on the decree holder to prove the income as well. But the Court below has proceeded in a wrong angle to decide the matter. Therefore the order under challenge requires interference. Therefore I set aside the order and remand the case back to the trial court for fresh consideration on condition that the judgment debtor pays an amount of RS.20,000/- to the decree holder within a period of one month from today and thereafter adduce fresh evidence in support of his contention on the plea of no means. Needless to say the decree holder also will be permitted to adduce evidence in support of the plea of means of the judgment debtor. The Court shall dispose of the matter after hearing both sides. Since I am disposing of the matter at the admission stage itself the Court below is directed to give W.P.C 6984 OF 2008 -:3:- notice to the decree holder and dispose of the matter. It is further held that the decree holder will be entitled to withdraw the amount of Rs.20,000/- paid or deposited by the judgment debtor irrespective of the result. Till such an enquiry is completed the arrest warrant shall not be executed. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-