IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 16764 of 2004(U)
1. SRI.K.J.JOSE, S/O.JAICOB,
... Petitioner
2. SRI.M.J.SIJU, S/O.JOSE, MANKUNJI HOUSE,
Vs
1. MR.JOHNSON ALAPPATT, MANAGING DIRECTOR,
... Respondent
For Petitioner :SRIP.G.SURESH
For Respondent :SRI.V.RAMKUMAR NAMBIAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :30/05/2007
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.16764 of 2004
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Dated: 30th May, 2007
JUDGMENT
Ext.P5 order by which the execution court found that the
revision petitioners are neglecting to pay the decree debt in spite of
their having sufficient means and ordered arrest on that basis is
under challenge in this proceeding under Article 227 initiated by the
judgment-debtors. The total E.P. claim as on date, according to the
counsel for the respondent, should be above Rs.75,000/-. Going by
appendix to Ext.P5 order R.W.1 and R.W.2 were examined on the
side of the judgment-debtors. The evidence on the side of the
respondent-decree-holder was the oral evidence of P.W.1 litigation
clerk. May be there was no effective cross-examination of P.W.1 and
the evidence of P.W.1 was convincing to the learned Munsiff. But I
find that in Ext.P5 the learned Munsiff has not appreciated the
counter evidence which was adduced by R.W.1 and R.W.2. Rather the
order proceeds as if no counter evidence at all was adduced by the
judgment-debtors. Since there is total lack of appreciation of the oral
evidence adduced on behalf of the judgment-debtors and the order
itself proceeds as if no counter evidence is adduced by the judgment-
debtors, Ext.P5 has to be set aside. But I notice that this court
W.P.C.No. 16764/04 – 2 –
became inclined to admit this Writ Petition and grant stay only on
condition that the petitioners remit a sum of Rs.3000/- within six
weeks. I am of the view that such a condition will be perfectly
justified even for directing the remand as indicated above. The Writ
Petition accordingly will stand disposed of issuing the following
directions:
Ext.P5 order is set aside and the learned Munsiff is directed to
pass fresh orders referring to the counter evidence which has been
adduced by the petitioners also within three months of receiving copy
of this judgment subject to the condition that the petitioners shall pay
Rs.3000/- to the respondent every month commencing from
15.6.2007 till such time as fresh orders are passed by the learned
Munsiff. In the event of any default by the petitioners, they will forfeit
the benefit of this order of remand and the impugned order will
revive.
srd PIUS C.KURIAKOSE, JUDGE
