IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 362 of 2004()
1. C.SASIKUMAR, PALAMUTTATHU VEEDU,
... Petitioner
2. P.KUNJAKRISHNA PILLAI, THENGAYYATHU
3. C.R.RAJASEKHARAN PILLAI, THENGAYATHU
4. N.ARAVINDAKASHAN PILLAI, GIRIJALAYAM,
Vs
1. KUMAR CHITTY FUND, REP. BY ITS
... Respondent
2. R.CHANDRASEKHARA PILLAI, PALAMUTTATHU
3. G.CHELLAMMA AMMA, PALAMUTTATHU VEEDU,
For Petitioner :SRI.P.B.SAHASRANAMAN
For Respondent :SRI.T.MADHU
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS
Dated :15/07/2009
O R D E R
M.L. JOSEPH FRANCIS, J.
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C.R.P.No. 362 of 2004
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Dated this the 15th day of July, 2009
O R D E R
This revision petition is filed by the judgment
debtors 1, 4, 5 and 6 in E.P.No. 122 of 1994 in O.S.No. 11
of 1991 on the file of the Sub Court, Kottarakkara, against
the order in that E.P. dated 19.3.2004. Respondents 1 to 3
herein are the decree holder and judgment debtors 2 and 3.
2. The facts of the case are briefly as follows. The
first respondent decree holder obtained an ex parte decree
against the judgment debtors for realisation of an amount
of Rs.1,35,180/- with interest. The judgment debtors
contended in the execution proceedings that the decree
passed in the kuri transaction is null and void and is
unexecutable. When the court below refused to consider
that contention, the revision petitioner herein filed
C.R.P.No. 613 of 2002 before this Court, which is now
C.R.P.No. 362 of 2004
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pending. As the Execution Court rejected the application
filed by the first respondent/decree holder for arresting the
judgment debtors, the decree holder filed C.R.P.No. 105
of 2002 before this Court, which was allowed and the
matter was remanded to the Execution Court.
3. The Execution Court, as per order in E.P. 122 of
1994 dated 19.3.2004 found that the judgment debtors 1,
4, 5 and 6 have means to pay the decree debt and issued
warrant against them. Against that order the judgment
debtors 1, 4, 5 and 6 filed this revision petition.
4. Heard the learned counsel for the petitioners and
the learned counsel for the first respondent.
5. As per the order in E.P. 122 of 1994 in O.S.No. 11
of 1991 on the file of the Sub Court, Kottarakkara dated
16.10.2001, the execution court found that the judgment
debtors 1, 4, 5 and 6 are not liable to be arrested, as the
decree holder failed to prove their means and the prayer for
C.R.P.No. 362 of 2004
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arrest and detention of the judgment debtors is rejected.
Against that order, the decree holder filed C.R.P.No. 105 of
2002 before this Court. This Court, as per order dated
3.6.2003, set aside that order and the case was remanded back
to the lower court for fresh consideration after giving the
parties opportunity to adduce evidence. After the remand, no
further evidence was adduced from both sides.
6. The lower court, as per order in E.P. 122 of 1994
dated 19.3.2004, found that the judgment debtors 1,4, 5
and 6 have means and they are wilfully defaulting in
discharging the decree debt and warrant was ordered
against them.
7. Section 51 of the C.P.C. lays down the modes of
execution of a decree. Proviso to Section 51 lays down
that where the decree is for payment of money, execution
by detention in the prison shall not be ordered unless the
court is satisfied that the judgment debtor has or has had
C.R.P.No. 362 of 2004
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since the date of the decree the means to pay the amount
of decree or some substantial part thereof and refused or
neglected or has refused or neglected to pay the same.
The learned counsel for the revision petitioners submits
that the revision petitioners have retired from government
service and that they have no means to pay the decree debt
and there is no wilful laches or negligence on their part to
pay the decree debt. An ex parte decree was passed in
1994 and after the passing of the decree no amount was
paid by the judgment debtors. It is true that the judgment
debtors have retired from government service. But they
were in government service at the time of passing of the
decree and therefore it can be inferred that they
purposefully avoided the payment.
8. As already mentioned, under proviso (b) to
Section 51 C.P.C., if the judgment debtor has or has had
since the date of the decree means to pay the amount of
C.R.P.No. 362 of 2004
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decree or some substantial part thereof, and refused or
neglected or has refused or neglected to pay the same,
arrest and detention is permissible. The decree holder has
given evidence as PW1 that the judgment debtors are
government servants and are drawing good salaries and
they are possessing landed properties and getting
substantial income from that property. No contra
evidence had been adduced on the side of them to show
that they have no means.
8. Therefore, the learned Sub Judge is fully justified
in finding that the judgment debtors have sufficient means
and they wilfully defaulted in discharging the decree debt
and the personal execution sought for by detention in
civil prison is allowed. Therefore, this revision petition is
liable to be dismissed, as it is without any merit.
C.R.P.No. 362 of 2004
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10. This revision petition is accordingly dismissed.
The Execution Court can proceed with the execution in
accordance with law.
(M.L. JOSEPH FRANCIS)
Judge
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