IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 557 of 2006()
1. E.K. JOHN, S/O. KORA,
... Petitioner
Vs
1. MATHEW, S/O. AUGUSTHY,
... Respondent
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent :SRI.GEORGEKUTTY MATHEW
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :01/03/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
----------------------------------------------------
C.R.P.No.557 of 2006
---------------------------------------------------
Dated this the 1st day of March, 2010
O R D E R
Petitioner is the decree holder in
E.P.No.69/2004 in O.S.No.45/2003 on the file
of the Munsiff’s Court, Thodupuzha. The above
execution petition filed by the petitioner to
realise the decree debt from the respondent
judgment debtor was dismissed accepting the
plea of ‘no means’ canvassed by the judgment
debtor. Propriety and correctness of the order
passed by the learned Munsiff is challenged in
the revision.
2. I heard the counsel for the petitioner.
3. Perusing the order passed by the
court below, it is seen that the evidence let
in by the judgment debtor, who was examined as
DW1.1 in the enquiry over his plea of ‘no
means’ was found acceptable to the learned
C.R.P.No.557 of 2006
:: 2 ::
Munsiff to conclude that he had ‘no means’ to
pay the decree debt. The learned counsel for
the petitioner/decree holder has read over to
me the evidence of the judgment debtor. To
disprove the case canvassed by the decree
holder that he had possessed two motor bikes,
one after the other, just a few months before
the institution of the suit for recovery of
money against him the judgment debtor produced
records to show that one of his bikes had been
stolen and the other one already disposed of
by sale, both such events occurring before the
institution of the suit. In cross-examination
of the judgment debtor it had come out that he
is in occupation of a building comprised in 4
cents of property which originally belonged to
his mother, who had passed away. In his re-
examination, the Will purported to have been
executed by his mother in favour of his
father-in-law was produced and got marked as
Ext.B3. Other than making a reference to
C.R.P.No.557 of 2006
:: 3 ::
Ext.B3, as one among the documents marked by
the judgment debtor, there is no reference in
the order of the learned Munsiff as to its
validity or genuineness. Prima facie, it would
appear that on the death of the mother, the
judgment debtor, one of her sons had inherited
some right over the property. The case
advanced by the judgment debtor that his
mother had executed a Will in favour of his
father-in-law on the face of it could be
taken only with a pinch of salt. Ext.B3 has
not been proved as mandated by law. His
evidence as DW.1 also indicate that he is
paying the charges of the telephone installed
in his house, which, according to him, comes
to Rs.500/-. One of his children is studying
in a Nursing College. The judgment debtor had
canvassed a case that his father-in-law is
taking care of the educational expenses of
that child, which is hardly susceptible. Plea
of ‘no means’ canvassed by the judgment debtor
C.R.P.No.557 of 2006
:: 4 ::
in the back drop of the materials placed by
him before the court was rather unconvincing.
So far as the decree holder is concerned, he
need lead evidence only to show that there is
no merit in the plea set up by the judgment
debtor as to the lack of ‘no means’ to
discharge the decree debt. Concrete evidence
from the decree holder to negative that plea
for disproving the claim of the judgment
debtor is hardly possible. Once the decree
holder leads evidence, prima facie, showing
that the plea of ‘no means’ canvassed by the
judgment debtor is unacceptable by mounting
the box and swearing to his case disputing the
case of the judgment debtor, then the burden
shifts on the judgment debtor to discharge the
decree debt.
4. The judgment debtor, immediately
prior to the filing of the suit, possessed a
bike; that a telephone installed in his name
in his house and a portion of the premises is
C.R.P.No.557 of 2006
:: 5 ::
also used for business purposes would indicate
that his plea of ‘no means’ lacked
credibility. The impugned order passed by the
learned Munsiff cannot be sustained in the
facts and circumstances presented in the case.
Setting aside the order, the court below is
directed to consider the matter afresh and
pass appropriate orders on the plea of ‘no
means’ canvassed by the judgment debtor taking
note of the observations made above and in
accordance with law.
5. Parties are directed to appear
before the court below on 29.03.2010.
Civil Revision Petition is disposed
of as above.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
sk/-
//true copy//