IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 13865 of 2007(A)
1. C.M.MOHANAN, S/O.CHELLAPPAN NAIR,
... Petitioner
2. P.RAMACHANDRAN, S/O.PARAMU NAIR,
Vs
1. MAHARASHTRA APEX CORPORATION LTD.,
... Respondent
For Petitioner :SRI.C.UNNIKRISHNAN (KOLLAM)
For Respondent :SRI.P.SHRIHARI
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :12/09/2007
O R D E R
M.N.KRISNAN, J.
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W.P.(C). 13865/2007
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Dated this 12th day of September, 2007
JUDGMENT
This writ petition is preferred against the order
of the IIIrd Additional District Judge, Kollam, directing
issuance of warrant against the judgment debtors 1 and 2.
It was an application filed to detain the said judgment
debtors in civil prison for refusal to pay the amount in
spite of having means.
2. According to the decree holder, the first
judgment debtor is a manager of cashew factory having
monthly income of Rs.7,000/- and second judgment debtor
is a businessman at Madras having a monthly income of
Rs.25,000/-. But both the judgment debtors denied the
same. The power of attorney holder of the decree holder
was examined. No document is produced to show
regarding the capacity or means to pay the amount by
the judgment debtors. The Court below simply accepted
the evidence of PW1 and ordered arrest. It is the civil
liberty of a person that is being curtailed and Section 51 of
CPC mandates that the Court must be satisfied about the
W.P.(C).13865/2007
2
means of the person and also the intentional negligence
of that persons to wipe of the liability.
3. In this case, the first judgment debtor entered
the box and tendered evidence denying the evidence of
PW1. If a person is alleged to be a manager of a
cashew factory it can be proved by production of
documents. The judgment debtor cannot prove the
negative whereas decree holder can prove the positive.
Just because one is young and healthy, Section 51 does
not contemplate arrest of the person. Therefore, I am
not satisfied with the evidence tendered in this case
regarding the means of the judgment debtors. But at
the same time an opportunity can be given to the
decree holder to adduce evidence by production of
documents if available, to prove the means of the
judgment debtors.
4. Therefore, the order under challenge is set
aside and the matter is remitted back to the Executing
Court and it is directed to dispose of the matter after
affording an opportunity to both sides to adduce
W.P.(C).13865/2007
3
evidence in support of their respective contentions.
Parties are directed to appear before the Court below on
23.10.2007.
The writ petition is disposed of accordingly.
M.N.KRISHNAN,
JUDGE
mrcs