Kerala High Court
P.K. Vasavan vs Jojy.J.Varghese on 22 October, 2024
2024:KER:78544
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
TUESDAY, THE 22ND DAY OF OCTOBER 2024 / 30TH ASWINA, 1946
OP(C) NO. 1907 OF 2024
AGAINST THE ORDER DATED 10.07.2024 IN EP NO.24 OF
2021 OF ASSISTANT SESSIONS COURT / SUB COURT / COMMERCIAL
COURT, PATHANAMTHITTA
PETITIONER(S)/1ST JUDGMENT DEBTOR:
P.K. VASAVAN
AGED 71 YEARS
PALANILKUNNATHIL VETTIL,
MEZHUVELI MURI,
MEZHUVELI VILLAGE,
PATHANAMTHITTA,
PIN - 689507
BY ADVS.
A.BALAGOPALAN
A.RAJAGOPALAN
M.N.MANMADAN
M.S.IMTHIYAZ AHAMMED
P.SEENA
RESPONDENT(S)/DECREE HOLDERS AND 2ND JUDGMENT DEBTOR:
1 JOJY.J.VARGHESE
AGED 50 YEARS
THUNDIYATHU VETTIL,
EDASERIMALA MURI,
2024:KER:78544
OP(C) NO.1907 OF 2024
2
ARANMULA VILLAGE,
PATHANAMTHITTA,
PIN - 689533
2 MARIAMMA VARGHESE
AGED 80 YEARS,
THUNDIYATHU VETTIL,
EDASERIMALA MURI,
ARANMULA VILLAGE,
PATHANAMTHITTA,
PIN - 689533
3 V.S.BHADRAN
AGED 58 YEARS
PULIARI VEETTIL,
MEZHUVELI MURI,
MEZHUVELI VILLAGE,
PATHANAMTHITTA,
PIN - 689507
BY ADVS.
FOR R1 & R2
JACOB P. ALEX
JOSEPH P. ALEX
MANU SANKAR P
AMAL AMIR ALI
FOR R3
ARUN.B.VARGHESE
RAKHI RAJ
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON
22.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:78544
OP(C) NO.1907 OF 2024
3
JUDGMENT
1. The judgment debtor in an Execution Petition is the
petitioner herein challenging Ext.P5 order by which an
arrest warrant is issued to the judgment debtor to realise
the decree debt.
2. The E.P. was filed in the year 2004, for realisation of an
amount of Rs. 2,02,235/- with interest on the principal
amount of Rs. 1,10,000/- at the rate of 18% per annum
from the date of the suit till the date of decree and at the
rate of 6% per annum till realisation. On the appearance of
the first Judgment Debtor pleaded that the amount due
from him is already paid and that he has no means to pay
the decree debt. The decree holder was examined as
PW1 and the 1st judgment debtor was examined as DW1.
2024:KER:78544
OP(C) NO.1907 OF 2024
3. After considering the evidence the Execution Court
passed Ext.P5 order issuing arrest warrant to the
judgment debtor discarding the contention that the
judgment debtor is not having means to pay the decree
debtor. The contention that the judgment debtor is
suffering from serious illness was also by the Execution
Court.
4. I heard the Sri. A. Balagopalan, the learned counsel for
the petitioner, Sri. Jacob P. Alex & Joseph P. Alex, the
learned counsel for the respondents 1 and 2/decree
holders and Sri. Arun B. Varghese & Smt. Rakhi Raj, the
learned counsel for the 3rd respondent/the 2nd judgment
debtor.
5. The learned counsel for the petitioner contended that
when it is shown before the Execution Court that decree
2024:KER:78544
OP(C) NO.1907 OF 2024
holder is suffering from illness, the Execution Court ought
to have conducted enquiry as mandated under Section 59
C.P.C. The transactions relied on by the Execution Court
to find means of the 1st judgment debtor were happened
much prior to the date of decree and the same could not
be relied on by the Execution Court. The decree holder
has not adduced any evidence to show that the 1st
judgment debtor is having sufficient property or income to
satisfy the decree debt.
6. On the other hand, the learned counsel for the
respondents 1 and 2/ decree holder contended that the
Execution Court has rightly found that the 1st judgment
debtor is having sufficient properties and income relying
on the oral evidence of 1st judgment debtor himself. It is
well settled that when the decree holder affirms that the
2024:KER:78544
OP(C) NO.1907 OF 2024
judgment debtor is having sufficient property and income,
it is for the judgment debtor to prove that he has no
property or income to pay the decree debt as the said
facts are within the knowledge of the judgment debtor.
7. The counsel for the 3rd respondent invited my attention to
Ext.R3(a) judgment in C.M.A. No. 6/2019 filed by him in
which the Court made it clear that only if the property of
the 1st defendant which is under attachment is not
sufficient to realise the amount under the decree, coercive
steps against the appellant can be taken.
8. I considered the rival contentions. It is seen that the
decree amount is only an amount of Rs. 2,02,235/- and
the suit was filed in the year 2004 and the E.P. was filed in
the year 2021. The decree holder was examined as PW1
and the decree holder has specifically stated about the
2024:KER:78544
OP(C) NO.1907 OF 2024
involvement of the 1st judgment debtor in a partnership
conducting financing business and with respect to several
properties. I have gone through through cross examination
of PW1, the said evidence of PW1 is not effectively
challenged in the cross examination. There is not even a
suggestion was made that the judgment debtor is not a
partner to the said firm. The 1st judgment debtor was
examined as RW1, he has admitted about the ownership
properties and the sale of properties. It is true that the 1st
judgment debtor had produced the Medical Documents to
prove that he was having illness. The said documents are
produced as Ext. P4 along with the Original Petition. The
said document is dated 12.01.2017. The enquiry
conducted by the Trial Court during July, 2024. The
judgment debtor did not produce any current medical
2024:KER:78544
OP(C) NO.1907 OF 2024
evidence to prove his illness before the court. The Court
has rightly found that the judgment debtor is having
sufficient means relying on the evidence rendered by PW1
and RW1. The contention of serious illness contended by
the judgment debtor is also not proved going by Ext.P4
document produced in the Original Petition. Ext.P4 only
discloses that the 1st judgment debtor had undergone only
Coronary Angiogram on 12/1/2007. It is only test. On the
same day he was discharged with medical management.
No evidence of any coronary disease is produced.
Accordingly, I do not find any error or illegality in Ext.P5
order. If any serious illness is developed to the 1 st
judgment debtor, he is free to file appropriate petition
under Section 59 CPC with evidence before the
Execution Court. In this Original Petition, I have
2024:KER:78544
OP(C) NO.1907 OF 2024
considered the legality of Ext.P5 alone. The 2nd Judgment
debtor is free to raise his contentions before the Execution
Court.
9. Accordingly, this OP(C) is dismissed.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
sms
2024:KER:78544
OP(C) NO.1907 OF 2024
APPENDIX OF OP(C) 1907/2024
PETITIONER EXHIBITS
Exhibit P1 THE TRUE COPY OF E.P. NO. 24 OF 2021 IN
O.S. NO. 73 OF 2004 DATED 05.04.2021 ON
THE FILE OF THE SUBORDINATE JUDGE'S
COURT, PATHANAMTHITTA
Exhibit P2 TRUE COPY OF THE OBJECTION FILED BY THE
PETITIONER IN E.P. NO. 24 OF 2021 IN
O.S. NO. 73 OF 2004 DATED 23.06.2022
Exhibit P3 TRUE COPY OF THE MEDICAL REPORT OF THE
PETITIONER ISSUED BY MUTHOOT BRAIN AND
SPINE CENTRE, KOZHENCHERRY DATED
14.02.2022
Exhibit P4 TRUE COPY OF THE DISCHARGE SUMMARY OF
THE PETITIONER ISSUED BY ST. GREGORIOUS
CARIO-VASCULAR CENTRE, PATHANAMTHITTA
DATED 12.01.2017
Exhibit P5 TRUE COPY OF THE ORDER IN E.P. NO. 24 OF
2021 IN O.S. NO. 73 OF 2004 DATED
10.07.2024
RESPONDENT EXHIBITS
EXHIBIT R3(a) A TRUE COPY OF JUDGMENT DATED 27.02.2021
IN CMA NO: 06/2019 PASSED BY ADDITIONAL
DISTRICT JUDGE I PATHANAMTHITTTA.
EXHIBIT R3(b) A TRUE COPY OF SETTLEMENT DEED NO:
251/2012 OF SRO PANDALAM.
