Kerala High Court
T.A Thajudheen vs Kerala Gramin Bank on 22 October, 2024
OP(C) NO. 2187 OF 2024
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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. 2187 OF 2024
AGAINST THE ORDER DATED 29.08.2024 IN EP NO.292 OF 2015 IN
O.S.No.169/2013 OF MUNSIFF COURT ,PARAPPANANGADI
PETITIONER/RESPONDENT/JUDGMENT DEBTOR:
T.A THAJUDHEEN
AGED 39 YEARS
S/O. AALIKUTTY THARAYIL HOUSE,PUTHARIKKAL, PARAPANANGADI P.O
MALAPPURRAM DISTRICT, PIN - 676303
BY ADVS.
P.K.MOHAMED JAMEEL
SUHARABI KANNETH
SMRITHI HARRIS
RESPONDENT/PETITIONER/DECREE HOLDER:
KERALA GRAMIN BANK
(FORMERLY SOUTH MALABAR GRAMIN BANK) REPRESENTED BY ITS
MANAGER PARAPANANGADI BRANCH PARAPANAGADI P.O MALAPPURAM
DISTRICT, PIN - 676303
ADV. SRI. JAWAHAR JOSE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22.10.2024, THE COURT
ON THE SAME DAY DELIVERED THE FOLLOWING:
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JUDGMENT
1. This Original Petition is filed by the judgment debtor in an
Execution Petition filed by the respondent/decree holder for
realisation of the decree debt of Rs.5,12,813/- along with costs.
The judgment debtor pleaded 'No Means'. The Execution Court
passed Ext.P4 order rejecting the plea of 'no means' raised by
the judgment debtor, directing the judgment debtor to pay the
balance as per the calculation statement of the decree holder
within 15 days. Thereafter, the Execution Court passed Ext.P5
order issuing an arrest warrant against the judgment debtor.
2. While admitting this Original Petition, this Court granted an
interim stay of the execution proceedings on condition that the
petitioner shall pay an amount of Rs.50,000/- to the respondent
within two weeks. The learned counsel for the respondent
confirmed that the petitioner has complied with the interim
order by making payment of Rs.50,000/- within the aforesaid
time.
3. Both sides advanced arguments, and on consideration of the
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arguments, I find that in Ext.P5, the Execution Court has relied
on the GST particulars produced by the decree holder to find
that the judgment debtor has an ample source of income. The
said GST particulars are not seen marked in evidence in the
proceedings. When the officer of the decree holder was
examined as PW1, a specific question was put to him that the
judgment debtor was not in a position to do any work, and the
witness answered in the affirmative. Apart from the GST
particulars referred to in the order, there is no other evidence
adduced by the decree holder to prove that the judgment
debtor is wilfully avoiding payment of the decree debt in spite
of having an income. Even if there is a GST registration in his
name, that does not mean that he has an ample source of
income to satisfy the decree debt. The source of income of the
judgment debtor is a matter for the decree holder to prove
when the plea of no means is raised by the judgment debtor.
There was no material before the Execution to hold that the
judgment debtor who has the means to pay a substantial part
of the decree debt, has been refusing and neglecting payment
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to the decree debt
4. In view of the aforesaid discussion, the Original Petition is
allowed setting aside Exts.P4 and P5 orders and directing the
Execution Court to consider the matter afresh, giving liberty to
both parties to adduce evidence in support of their contentions.
The payment of Rs.50,000/- made by the judgment debtor to
the decree holder in compliance with the interim order of this
Court shall be adjusted toward the decree debt.
Sd/-
M.A.ABDUL HAKHIM
JUDGE
Shg/xx
OP(C) NO. 2187 OF 2024
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APPENDIX OF OP(C) 2187/2024
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF E.P 292/2015 OF MUNSIFF
COURT,PARAPPANANGADI
Exhibit P2 A TRUE COPY OF DEPOSITION OF
RESPONDENT/PETITIONER IN E.P NO.292/2015 OF
MUNSIFF COURT,PARAPPANANGADI
Exhibit P3 A TRUE COPY OF COUNTER AFFIDAVIT DATED 15/3/2024
Exhibit P4 A TRUE COPY OF ORDER DATED 29/8/2024 IN E.P
NO.292/2015 IN O.S NO.169/2013 OF MUNSIFF COURT
,PARAPPANANGADI
Exhibit P5 A TRUE COPY OF THE CASE STATUS DATED 29/3/2024 OF
E.P 292/2015 OF MUNSIFF COURT,PARAPPANANGADI
