Anitha Ashokan vs Komalavally on 10 July, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 19239 of 2006(M)


1. ANITHA ASHOKAN, PARIYARATHU VEEDU,
                      ...  Petitioner

                        Vs



1. KOMALAVALLY, D/O.GOPALAN NAIR,
                       ...       Respondent

                For Petitioner  :SRI.LIJI.J.VADAKEDOM

                For Respondent  :SRI.V.G.ARUN

The Hon'ble MR. Justice PIUS C.KURIAKOSE

 Dated :10/07/2007

 O R D E R


                           PIUS C. KURIAKOSE,J.

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                          W.P.(C) No.19239 of 2006

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                             Dated: 10th July, 2007


                                   JUDGMENT

The judgment-debtor against whom a money decree is passed

is aggrieved by Ext.P5 order by which the execution court has turned

down her plea that she is an agricultural labourer and therefore her

house property is not liable to be attached or sold.

2. Heard Mr.Liji J.Vadakedom, learned counsel for the petitioner

and Mr.T.R.Harikumar, learned counsel for the respondent.

3. On going through Ext.P5 impugned order, it is seen that the

learned Munsiff has taken the view that it was up to the petitioner to

have established by adducing satisfactory evidence that she is

entitled for the benefits under Section 60(1)(c) of the Code of Civil

Procedure. The petitioner did not adduce even oral evidence before

the execution court. Though in this court she has produced Exts.P1

and P2 before this court, those documents not produced before the

execution court. Noticing the apparent merit in the grounds raised,

this court admitted the Writ Petition and granted interim stay on

condition that the petitioner pays a sum of Rs.2000/- towards the

decree debt on or before 21.9.2006. Counsel for the petitioner

submits that the above condition has been complied with by the

W.P.C.No.19239/06 – 2 –

petitioner and that submission is not resisted by the counsel for the

respondent. Counsel for the petitioner submits that if an opportunity

is given it will be possible for the petitioner to substantiate her

contention by adducing evidence including Exts.P1 and P2.

Considering the request of the learned counsel for the petitioner, I

am inclined to grant the same.

4. Accordingly, I set aside Ext.P5 and direct the execution court

to take a fresh decision on the question whether the petitioner is

entitled for the benefits under Section 60(1)(c) of the Code on

condition that till such time as the learned Munsiff completes the

enquiry and takes fresh decision the petitioner will remit every month

commencing from 1.8.2007 at the rate of Rs.750/- towards the

decree debt. It is open to the petitioner to produce Exts.P1 and P2 or

any other evidence which she chooses to adduce before the execution

court. The execution court will finalise the enquiry and pass fresh

orders at its earliest and at any rate within six months of receiving

copy of this judgment. In the meanwhile if the petitioner commits

default in payment of any of the instalments as directed above, she

W.P.C.No.19239/06 – 3 –

will forfeit the benefit of this judgment and under such an event the

impugned order will become operative.

The Writ Petition will stand disposed of as above. No costs.

srd                                                    PIUS C.KURIAKOSE, JUDGE