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2012 DIGILAW 132 (KER)

Maharashtra Apex Corporation Ltd. v. K. Sukumaran

2012-01-30

K.T.SANKARAN

body2012
Judgment :- K.T. Sankaran, J. 1. The decree holder in E.P.No.46 of 2003, on the file of the court of the District Judge, is aggrieved by the order dated 14th September, 2010, passed by the executing court dismissing the Execution Petition. The order passed by the executing court reads as follows : "The E.P. is dismissed as there is no document to prove that the J.D. is having means. Though the witness of decree holder has deposed that he has encumbrance certificate but no such document is produced till date. Hence, it is presumed that if that document is produced the same may go against decree holder. That is the reason why decree holder is not producing the document to show that J.D. is having means." 2. An award dated 20.4.2002 in A.P.No.236 of 2000 was passed by the arbitrator at Udupi directing the respondents to pay a sum of ` 1,60,103/-with future interest at 21% per annum from 22.9.1999 till the date of payment and costs. The award became a decree and it was transferred to the District Court, Kasaragod, for execution. E.P.No.46 of 2003 was filed before the District Court, Kasaragod, for execution of the decree by arrest and detention of the judgment debtors in civil prison. The judgment debtors contended that they have no means to pay the decree debt. 3. It is stated that the petitioner produced registration copies of two settlement deeds of the year 1988 and 1975 executed in favour of respondent No.2 and respondent No.3 respectively and those documents were marked as Exhibits A1 and A2. It is also stated in paragraph 4 of the statement of facts thus: "Manager of the Kasaragod branch, Sri.T.K.Preman was examined as witness of petitioner on 2.1.2008. Thereafter, the E.P. was posted to 16.9.2009, 2.2.2008, 27.2.2008, 10.3.2008, 27.5.2008, 2.7.2008, 28.7.2008, 20.8.2008 and 6.10.2008 for evidence of the judgment debtors, but they were not examined. No documents were marked on the side of judgment debtors. The matter was posted for hearing on 12.11.2008, 10.12.2008, 15.1.2009, 17.2.2009, 7.3.2009, 31.3.2009, 3.6.2009, 6.7.2009, 14.8.2009, 16.9.2009, 19.10.2009, 9.11.2009, 2.12.2009, 16.12.2009, 4.1.2010, 25.1.2010, 16.2.2010, 9.3.2010, 30.3.2010, 26.5.2010, 21.6.2010, 12.7.2010 and 10.8.2010. The matter was heard on 10.8.2010, and impugned order was passed on 14.9.2010 without considering the merit of the case." 4. The learned District Judge did not consider the contentions put forward by the parties on the merits. The matter was heard on 10.8.2010, and impugned order was passed on 14.9.2010 without considering the merit of the case." 4. The learned District Judge did not consider the contentions put forward by the parties on the merits. The Execution Petition was dismissed only on the ground that the decree holder did not produce the encumbrance certificates in respect of the properties allegedly held by the judgment debtors. It is to be noted that the prayer in the Execution Petition is not for sale of those properties. The documents of title were produced to show that the judgment debtors have means to pay the decree debt. If the properties shown to be in the possession of the judgment debtors were encumbered, it was for the judgment debtors to say so. The decree holder was not bound to prove that the properties standing in the names of the judgment debtors were unencumbered. There is no such burden of proof for the decree holder. If it is shown that the judgment debtors own properties as per the two title deeds, the burden shifts to the judgment debtors to show that they do not own those properties or that those properties are not available or they are otherwise encumbered. The judgment debtors have not adduced any evidence in the case. 5. In the facts and circumstances of the case, I am of the view that the court below committed an error of jurisdiction. The order passed by the court below is illegal and unsustainable. Accordingly, the order dated 14th September, 2010 is set aside. 6. The executing court shall consider the matter afresh after affording an opportunity of being heard to both sides. As a matter of extreme indulgence, an opportunity is granted to the judgment debtors to adduce evidence, on condition that they shall not pray for adjournment of the case. The parties shall appear before the court below on 1st March, 2012.