High Court Kerala High Court

C.M.Mohanan vs Maharashtra Apex Corporation Ltd on 12 September, 2007

Kerala High Court
C.M.Mohanan vs Maharashtra Apex Corporation Ltd on 12 September, 2007
       

  

  

 
 
  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.
                   --------------------------------
                    W.P.(C). 13865/2007
                     -----------------------------
           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