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Sri.K.J.Jose vs Mr.Johnson Alappatt on 30 May, 2007

Kerala High Court
Sri.K.J.Jose vs Mr.Johnson Alappatt on 30 May, 2007
       

  

  

 
 
  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


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