Muhammed @ Assan Muhammed vs Narayanan on 29 June, 2007

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C) No. 1918 of 2007(C)


1. MUHAMMED @ ASSAN MUHAMMED,
                      ...  Petitioner

                        Vs



1. NARAYANAN, S/O. KODANGATTU THACHU KURUP
                       ...       Respondent

                For Petitioner  :SRI.E.R.VENKATESWARAN

                For Respondent  :SRI.P.N.RAVINDRAN

The Hon'ble MR. Justice M.N.KRISHNAN

 Dated :29/06/2007

 O R D E R
                              M.N.KRISHNAN, J

                              ===========

                         W.P.C.NO. 1918 OF 2007

                         ================

                 Dated this the 29th Day of June, 2007.

                =========================


                               J U D G M E N T

This Writ Petition is filed seeking to quash the order of the

learned Munsiff, Pattambi, in E.P.No.75/2005. The Execution

Petition is one for realisation of the amount by detaining the

judgment debtor in civil prison for the reason that though he is

having sufficient means to pay, he has refused to pay the amount

and so he be arrested and detained in civil prison. The judgment

debtor entered appearance and contended that he has no means

to pay and that he is not neglecting or refusing to pay the

amount. So arrest need not be ordered. But at the enquiry

state, the matter proceeded in another angle, for the reason, that

the property which the judgment debtor has, was transferred in

favour of his wife in the year 2005. The court entered into an

enquiry regarding the genuineness of the transaction. I feel, in

an Execution Petition where it is specifically averred that the

question to be considered is that of means and neglect to pay.

The enquiry has to be made only within that four corners and not

W.P.C.NO. 1918 OF 2007 2

extraneous to that. It is true that, when a judgment debtor

transfers his property with an intend to delay of defeat the

creditors, the decree holder has a remedy, and it is the provision

under Section 53 of the Transfer of Property Act, which entitles

the decree holder to challenge that document in appropriate

proceedings even in execution applications. Now a perusal of the

documents produced would show that there was a previous

agreement and only on the basis of that and on account of the

non-payment of the amount stipulated in the agreement, the

document was executed. I am afraid that the court below has

entered into a scope of enquiry which was not contemplated in a

petition filed under Order XXI Rule 37 of the Code of Civil

Procedure. Therefore I set aside that order. But at the same

time the learned counsel for the respondent/decree holder

submits that sufficient opportunity be given to her client in order

to adduce further evidence to prove the means of the judgment

debtor and his intentional and deliberate act of non-payment. An

opportunity therefore is given and therefore the order under

challenge is set aside and the matter is remanded back to the

executing court for consideration of the factum of means and also

W.P.C.NO. 1918 OF 2007 3

the neglect on the part of the judgment debtor to pay the

amount. But I make it clear, if circumstance exist, and the

decree holder wants to invoke the benefit under Section 53 of the

Transfer of Property Act, he may do it in appropriate proceedings

or by amending the execution application as permissible under

law.

The Writ Petition is disposed of accordingly.

M.N.KRISHNAN

JUDGE

bkn