Perumal vs Perumal
2021 Latest Caselaw 4934 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

          THE HONOURABLE MR.JUSTICE T.V.ANILKUMAR

 WEDNESDAY, THE 10TH DAY OF FEBRUARY 2021 / 21ST MAGHA,1942

                     CRP.No.540 OF 2019

 AGAINST THE ORDER IN EP NO.5/2018 IN OS 348/2014 DATED 10-
        06-2019 OF PRINCIPAL MUNSIFF COURT, PALAKKAD

REVISION PETITIONER/RESPONDENT/JUDGMENT DEBTOR/DEFENDANT:

            PERUMAL
            AGED 46 YEARS
            S/O.VELUCHAMI, 248 Q,
            CHINNAPPALLY STREET,
            MELAMURI, PALAKKAD.

            NOW RESIDING AT
            KULIAKKAD, KALLEPPULLY POST,
            PALAKKAD DISTRICT.

            BY ADVS.
            SRI.SAJAN VARGHEESE K.
            SRI.LIJU. M.P
            SRI.JOPHY POTHEN KANDANKARY

RESPONDENT/PETITIONER/DECREE HOLDER/PLAINTIFF:

            SURESHKUMAR
            S/O.SOMAN, 'SS SADHANAN', ANAVOOR,
            THIRUVANANTHAPURAM.

            REP.BY THE POWER OF ATTORNEY HOLDER
            THIRUPPATHY, S/O.DHANUSHKODY, 17/179,
            OTHUR THARA, KALLEPPULLY POST,
            PALAKKAD DISTRICT-678 018.

            BY ADV. SRI.RAJESH SIVARAMANKUTTY

     THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD
ON 10.02.2021, THE COURT ON THE SAME DAY PASSED THE
FOLLOWING:
 C.R.P.No.540 of 2019

                                   :-2-:

        Dated this the 10th day of February, 2021


                              O R D E R

This revision petition arises from the impugned

order passed by the Principal Munsiff's Court,

Palakkad, in E.P.No.5/2018 in O.S.No.348/2014.

2. The respondent/decree holder sought

personal execution of the petitioner/judgment

debtor alleging that he has sufficient means to pay

the decree amount but he has willfully neglected to

make payment of the same. The decree sought to be

executed is one for return of advance amount of

Rs.7 lakhs passed in favour of the respondent.

According to the respondent, the petitioner is a

railway contractor by profession, earning a monthly

income of Rs.1 lakh. It was further alleged that he

was owning a TATA Sumo vehicle also which he

disposed of during the pendency of the execution

proceedings. These allegations were denied in the C.R.P.No.540 of 2019

:-3-:

counter filed by the petitioner. It was contended

that he is only a coolie worker earning daily wages

for his livelihood and he has no asset of his own

except 3½ cents of land in respect of which the

impugned agreement for sale was executed.

3. The court below examined the power of

attorney holder of the decree holder as PW1 and the

judgment debtor as DW1. After appreciating the oral

evidence tendered by parties, the court below held

that the judgment debtor has sufficient means and

nonetheless, he neglected to discharge the decree

debt. This finding entered into by the court below

is under serious challenge in this revision

petition.

4. I heard the learned counsel appearing for

the petitioner as well as the respondent.

5. My attention was drawn to the testimonies

given by parties in the court below. The serious C.R.P.No.540 of 2019

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dispute raised by the revision petitioner is that

there is no convincing evidence to establish that

he is a railway contractor. It was also submitted

that had he been engaged as a railway contractor,

there would have been some records with the railway

and the decree holder ought to have sought to

produce the same. In the course of testimonies

given by PW1, he however admitted that TATA Sumo

was not owned by the judgment debtor. Learned

counsel for the decree holder drawing my attention

to the evidence tendered by DW1, submits that there

are admissions made in his testimony to the effect

that he is a railway contractor undertaking works

for railway by employing about 20 labourers.

Learned counsel for the judgment debtor submitted

that he had not made any statement admitting

himself to be a railway contractor and what he said

was that he was only a daily wage earner. C.R.P.No.540 of 2019

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6. Having heard the submissions made by the

learned counsel appearing on either side, I am of

the opinion that the evidence tendered by parties

requires to be re-appreciated.

7. The question that arises for consideration

in a motion made for personal execution under Order

21 Rule 37 CPC is whether the judgment debtor has

substantial means to pay the decree debt and he has

neglected to make payment of the same for no good

reasons. This question ought to be decided in the

light of the evidence adduced by parties. Having

heard the learned counsel appearing on both sides,

I am of the opinion that the parties shall be given

opportunities to adduce evidence on the issue on

hand and a fresh decision shall be taken in the

light of the fresh evidence to be brought on

record, if necessary. I make it clear that I have

not expressed any opinion on merits of the case or C.R.P.No.540 of 2019

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evidence. In view of what I said above, I am of the

opinion that the impugned orders should be

interfered with and the matter remitted back to the

court below.

In the result, revision petition is allowed and

the impugned order is set aside calling upon the

court below to decide the issue on hand in the

light of fresh evidence, if any adduced by parties

for which opportunities shall be given to them.

Since the matter appears to be of the year 2014,

there will be a direction to the court below

dispose of the matter within a period of two months

from the date of receipt of certified copy of this

order.

All pending interlocutory applications are

closed.

Sd/-

T.V.ANILKUMAR JUDGE ami/