IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 6TH FEBRUARY 2009 / 17TH MAGHA 1930 WP(C).No. 34740 of 2007(I) -------------------------- AGAINST THE ORDER IN EP 429/2006 IN OS.13/2003 of PRL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- CYRIAC THOMAS, PROPRIETOR, LOTUS INFORMATICS, 39/3709, SHIVA NIVAS, K.S.N.MENON ROAD, COCHI-16. BY ADV. SRI.C.V.VASUDEVAN SMT.SHERLY MOL THOMAS SMT.S.CHITHRA. RESPONDENT(S): --------------- MARTIN, S/O.P.P.XAVIER, PAZHAMPILLILL HOUSE, MARADU VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT 682 304. ADV. SRI.E.A.THANKAPPAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PIUS.C.KURIAKOSE, J. ------------------------ W.P.(C)No. 34740 OF 2007 ------------------------ Dated this the 6th day of February, 2009 JUDGMENT Under challenge in this writ petition filed under Article 227 by the decree holder is Ext.P6 order of the learned Munsiff holding that the evidence is not sufficient to hold that that the judgment debtor respondent is having sufficient means to pay the decree debt in a lump or a substantial portion thereof or that he has wilfully neglected to pay the decree debt despite having means. 2. Even though notice of this writ petition was served on the respondent and he engaged a counsel for defending the writ petition and this case was posted peremptorily for hearing on more occasions than one, there is no representation for the respondent. I have heard the submissions of Smt.Sherly Mol Thomas, learned counsel for the petitioner. The learned counsel would assail Ext.P6 order submitting that the appreciation of the evidence adduced by the parties in this case by the learned Munsiff was not proper. The learned counsel submitted that the general tenor of the evidence of the judgment debtor was one of evasion and she would in this context draw my attention to Ext.P5, which is a copy of the deposition given by the respondent before the court below. She submitted that it was in evidence that the respondent is leading a cushy life and his children are being educated in very costly schools. She also submitted that it was in evidence the respondent has transferred his properties fraudulently after he incurred the liability. The above submissions of the learned counsel, as already indicated, are not resisted by anybody. 3. Having considered the submissions of the learned counsel for the petitioner and having gone through Ext.P5, I feel that the issue should be reconsidered by the learned Munsiff in the light of the judgment of this court in Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) wherein Justice Paripoornan has held that it is not necessary that the decree holder furnishes every details of the assets belonging to the judgment debtor and it is sufficient that the decree holder give some indication regarding the properties and assets of the judgment debtor and it is for the execution court to draw correct inference on the basis of the materials available and enter finding as required under Section 51. I, therefore, set aside Ext.P5 and direct the learned Munsiff to restore the execution petition back to file, hear the parties again and take a fresh decision regarding the liability of the respondent for arrest and detention in execution of the decree in question in the light of the judgment of this court in Kuppuswamy's case and any other decision which may be cited before the learned Munsiff. Fresh orders, as directed above shall be passed at the earliest and at any rate within two months of receiving a copy of this judgment. It is also clarified that the impugned order declining arrest and detention will not stand in the way of the petitioner filing a fresh execution petition seeking to proceed against the immovable properties of the respondent judgment debtor including properties if any fraudulently transferred by him. PIUS.C.KURIAKOSE,JUDGE dpk The penultimate sentence in paragraph 2 of the judgment dated 06/02/2009 in WP(C) No.34740/2007 is deleted and substituted by the following sentence: “She also submitted that it was in evidence that the respondent has during the subsistence of the liability purchased properties in the name of his wife with the objective of defrauding the decree holder”. Vide order dated13/3/2009 in I.A.3186/2009 in WP(C) No.34740/2007. Sd/- Registrar (Judicial).