Kerala High Court
Adbulla Koya Thangal vs Hafsath Beevi on 1 March, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SATHISH NINAN
WEDNESDAY, THE 1ST DAY OF MARCH 2023 / 10TH PHALGUNA, 1944
OP(C) NO. 1496 OF 2022
AGAINST THE JUDGMENT IN EP NO.46/2019 IN PLP 898/2018 OF SUB COURT,
MANJERI
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PETITIONER/RESPONDENT-JUDGMENT DEBTOR IN EP:
ADBULLA KOYA THANGAL
AGED 55 YEARS
S/O SAITHALAVI KOYA THANGAL, KIZHAKKEPURATH
MUHYADHEENPALLIKKAL HOUSE, AAKKAPARAMB, POONTHANAM P.O.,
KEEZHATTOOR VILLAGE, PERINTHALMANNA TALUK, MALAPPURAM
DISTRICT, PIN - 679325
BY ADVS.
K.M.JAMALUDHEEN
LATHA PRABHAKARAN
RESPONDENT/PETITIONER-DECREE HOLDER IN EP:
HAFSATH BEEVI
AGED 46 YEARS
D/O SAITHALAVI KOYA THANGAL, KODAMBIYAKATH HOUSE, (HADHAD
MANZIL), KOTTARAM, KATTIPARUTHI.P.O., TIRUR TALUK, MALAPPURAM
DISTRICT, PIN - 676552
BY ADVS.
REEHA KHADER K
ANJALY JIMMICHAN
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 01.03.2023, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
SATHISH NINAN, J.
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O.P.(C) No.1496 of 2022
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Dated this the 1st day of March, 2023
J U D G M E N T
The judgment debtor in a decree for money is the
petitioner. He challenges Ext.P9 order whereunder the
petitioner is directed to be detained in civil prison in
execution of a decree.
2. The petitioner and the respondent are a divorced
couple. The claim of the respondent for various amounts
entrusted with the petitioner-husband at the time of
marriage etc. were settled in Lok Adalat in PLP
898/2018. As per the settlement, the settled amount of
` 15,40,000/- was agreed to be paid on or before
25.09.2018. It provided for a default clause as per
which, on failure to comply, the petitioner was liable
to pay interest on the amount, at the rate of 12% from
09.02.2018.
O.P.(C) No.1496 of 2022
3. Consequent on the failure on the part of the
petitioner to comply with the compromise decree, the
respondent-decree holder filed EP 46/2019 seeking
execution by arrest and detention.
4. The execution court after recording the
evidence, ordered arrest and detention of the
petitioner.
5. Heard learned counsel on either side.
6. The decree under execution relates to amounts
payable under a matrimonial relationship including
amounts entrusted to the petitioner at the time of
marriage. When the amount in respect of which execution
is sought is one which the judgment debtor is in a
fiduciary capacity bound to account, the defence plea of
"no means" is of no relevance; this is so in view of Sub
clause (c) to the proviso to Section 51 of the Code of
Civil Procedure (See Sunitha v. Ramesh 2010 (3) KLT 501). In
the said judgment, the Division Bench of this Court
held:-
O.P.(C) No.1496 of 2022
"29. The above discussions lead us to the conclusion that
husband and wife relationship can be held to be a fiduciary
relationship. It also follows that in respect of cash, ornaments
and articles brought by the wife to her matrimonial home and
entrusted to the husband he is bound in a fiduciary capacity to
account to the wife whenever she makes a demand. Elements of
trust are involved in such relationship and in the entrustment of
case/ornaments/articles. We do not, in these circumstances,
have any hesitation to agree that proviso(c) to S.51 of the C.P.C
squarely applies and the pleas which may be available under
Cls.(a) and (b) of S.51 of the C.P.C. Shall not be available to a
judgment-debtor, if the case falls within Cl.(c)."
7. Therefore, the plea of no means urged by the
petitioner is only to be rejected and I do so.
8. Even on the merits of the plea of no means, it
is noticed that the respondent-decree holder had in the
chief affidavit (PW1), mentioned about the various
sources of income of the petitioner. A reading of the
cross-examination of PW1 shows that the same has not
been specifically challenged. The execution court has on
appreciation of evidence found that the petitioner has
O.P.(C) No.1496 of 2022
interest over immovable property and that there is
income from the property etc. From the deposition of the
petitioner-judgment debtor it has come out that he is
using a Swift Dzire car; though it is stated to be in
the name of his brother, no evidence in the said regard
is produced. He was aged 53 years at the time of
tendering evidence. It cannot be assumed that the
petitioner lives without any income. The claim of the
respondent-decree holder that the petitioner is engaged
in the business as pointed out by her as PW1 is only
probable. The execution court has appreciated the
materials and has found that the petitioner is possessed
of means. No interference is called for with the order
impugned.
Original petition fails and is dismissed.
Sd/-
SATHISH NINAN
JUDGE
kns/-
//True Copy//
P.S. to Judge
APPENDIX OF OP(C) 1496/2022
PETITIONER EXHIBITS
Exhibit P1 TRUE COPY OF THE E.P.NO.46/2019 IN PLP NO-
898/2018 FILEDBY THE RESPONDENT BEFORE THE
SUBORDINATE JUDGE'S COURT, MANJERI
Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER TO EXT-P1
Exhibit P3 TRUE COPY OF THE DETAILS OF ASSETS FILED BY
THE PETITIONER UNDER ORDER 21 RULE 41 OF THE
CIVIL PROCEDURE CODE
Exhibit P4 TRUE COPY OF THE E.A.NO.7/2020 IN
E.P.NO.46/2019 IN PLP N0.898/2018 FILED BY
THE PETITIONER
Exhibit P5 TRUE COPY OF THE LIST OF DOCUMENTS FILED BY
THE PETITIONER
Exhibit P6 TRUE COPY OF THE E.A.NO6/2021 IN
E.P.N0.46/2019 IN PLP N0.898/2018 FILED BY
THE PETITIONER
Exhibit P7 TRUE COPY OF THE OBJECTION TO EXT-P6 FILED BY
THE RESPONDENT
Exhibit P8 TRUE COPY OF THE E.A.NO.7/2021 IN
E.P.NO.46/2019 IN PLP N0.898/2018 FILED BY
THE PETITIONER
Exhibit P9 TRUE COPY OF THE JUDGMENT IN E.P.N0.46/2019
IN PLP N0.898/2018 DATED 8-7-2022 BY THE
COURT OF SUBORDINATE JUDGE, MANJERI.
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