IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN FRIDAY, THE 11TH APRIL 2008 / 22ND CHAITHRA 1930 CRP.No. 1027 of 2006(A) ---------------------------------- (ORDER IN E.P. NO. 29/2006 IN O.S. NO. 117/1999 DTD. 31/08/2006 OF MUNSIFF COURT, ALATHUR). ..................... REVISION PETITIONER/ PETITIONER/ DECREE HOLDER: --------------------------------------------------------------------------------- GEORGE PHILIP, S/O.ELANJHIKKAL PHILIP, KALLINGAL PADAM, KANNAMBRA AMSOM, ALATHUR TALUK. BY ADV. SRI.N.JAMES KOSHY. RESPONDENT/RESPONDENT/DEFENDANT: --------------------------------------------------------------- JOY JOSEPH, S/O.JOSEPH, MOAYAPPALLY VEETTIL, KALLINGAL PADAM, KANNAMBRA AMSOM, ALATHUR TALUK. BY ADV. SRI.JOHNSON P.JOHN, ADV. SRI. BABY MATHEW. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = C.R.P. NO. 1027 OF 2006 = = = = = = = = = = = = = = = Dated this the 11th day of April, 2008. O R D E R This revision petition is preferred against the order in E.P.29/06 in O.S.117/99. It is an application for execution for the realisation of the amount due under a compromise decree by arrest and detention. The decree holder contended that being a compromise decree the judgment debtor is not entitled to raise the plea of no means. In support of the said contention two decisions reported in 1988 (1) KLT 491 and 1992 (2) KLT 519 were pressed into service. Velayudhan v. State Bank of India 1998 (1) KLT 491) was a case regarding surety and the Court held that he cannot raise the plea of no means but the Division Bench of this Court in the decision reported in Francis v. Central Bank of India (1990 (2) KLT 983) has overruled the same. So far as the case reported in Krishnan v. Metal Industries Ltd. (1992 (2) KLT 519) is concerned it is a case where the Court was considering about the fiduciary relationship. Here except the fact that it is a compromise decree there is nothing to show CRP NO. 1027 of 2006 -:2:- there is fiduciary capacity. Therefore the Court below cannot be found fault with for entering into a finding that the contention that plea of no means is not available to the judgment debtor is not correct. But that will not end the execution proceedings. The decree holder can be given an opportunity to prove the means of the judgment debtor and in fairness when the judgment debtor agrees for a compromise decree at least there is a moral obligation cast on him to wipe of the liability. I leave it there. But I set aside the order of the Court below and remit the case back to the trial court for fresh consideration giving an opportunity to the decree holder to prove the means of the judgment debtor as well as an opportunity to the judgment debtor to substantiate his contention of no means. 2. The parties are directed to appear before the Court below on 31.5.2008. The C.R.P. is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-