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2014 DIGILAW 298 (KER)

Kallanode Service Co-Op. Bank v. Philip Joseph

2014-03-31

K.HARILAL

body2014
ORDER : K.Harilal, J. The revision petitioner herein is the decree holder in E.P.No.37/2010 in ARC.No.446/03-04 on the files of the Munsiff's Court, Perambra. The revision petitioner is a Co-operative Society registered as No.F-1827 under the Kerala Co-operative Societies Act. As per the Execution Petition, an amount of Rs.18,801/- is due from the judgment debtor to the decree holder. It is pertinent to note that the principal amount was only Rs.6,000/-. The above Execution Petition was filed to realise the decree debt by arrest and detention of the judgment debtor in civil prison. According to the decree holder, the judgment debtor has sufficient means to pay off the decree debt and he wilfully defaulted to pay the decree amount in disobedience to the decree passed against him. 2. The judgment debtor filed an objection admitting that he has two items of immovable property, having an extent of 78 cents and 7 cents respectively. According to him, even though he has so much extent of property, the yieldings, which he has been receiving from the said properties, are not sufficient to pay the decree debt as he is getting a meagre income from the said properties. 3. The decree holder was examined as P.W.1 and Exts.A1 to A3 were marked. But, no evidence either oral or documentary had been adduced by the judgment debtor. After considering the rival contentions, the court below dismissed the Execution Petition on a finding that the judgment debtor has no means to pay off the decree debt. The above finding is under challenge in this Revision Petition. 4. The learned counsel for the revision petitioner advanced arguments challenging the findings in the impugned order. The point to be determined in this Revision Petition is, whether there is any illegality or impropriety in the findings that the judgment debtor has no sufficient means to pay off the decree debt, in view of the evidence available on record. 5. Going by the impugned order, it is seen that the judgment debtor himself admitted that he has two items of properties having an extent of 78 cents and 7 cents respectively. But, his case is that, when coconuts are ripened for yielding, monkeys come from nearby forests and destroy the tender coconuts. 5. Going by the impugned order, it is seen that the judgment debtor himself admitted that he has two items of properties having an extent of 78 cents and 7 cents respectively. But, his case is that, when coconuts are ripened for yielding, monkeys come from nearby forests and destroy the tender coconuts. In addition to that, in the chief affidavit as well as in the Execution Petition, the decree holder has specifically stated that the judgment debtor has 53 cents of property by virtue of Document No.375/94 and the copy of the said title deed was produced and marked as Ext.A1. Going by the order, it is seen that the court below had not relied on Ext.A1 on the sole reason that the current encumbrance certificate was not produced. I am unable to accept the said reasoning in the absence of denial from the part of the judgment debtor to the effect that he has no such property as covered by Ext.A1. Thus, it is proved that the judgment debtor has 138 cents of property. I am unable to believe that a person having 138 cents of property has no means to pay off the decree debt of Rs.18,801/-. 6. Here, the court below dismissed the execution petition on a finding that the income from the monthly or annual yieldings of the property alone can be taken into account as 'means' to pay off the decree amount and the same is not sufficient to pay off that debt. Then the question that emerges for consideration is whether the saleability of the property also can be taken into account in the determination of judgment debtor's 'means' to pay off the decree debt? In Kuppuswamy v. P.G. Menon ( 1992 (2) KLT 203 ), this Court specifically interpreted the scope and extent of the crucial words in clause (b) of the proviso to Section 51 of the Code of Civil Procedure , as follows: "The means to pay the amount of decree or substantial part thereof only mean that the judgment debtor should have realisable assets from which necessary money can be raised or realised to pay up the decree amount." 7. So, I am of the opinion that the expression "means" employed in clause (b) of the proviso to Section 51 of the CPC includes saleable right or interest over any property also. So, I am of the opinion that the expression "means" employed in clause (b) of the proviso to Section 51 of the CPC includes saleable right or interest over any property also. Put it differently, the expression 'means' encompasses saleability of the property also. It cannot be confined to income from yieldings of the property only. If the judgment debtor has saleable, movable or immovable property, from which sufficient amount can be raised to satisfy the decree debt by sale of the same save as mentioned under the proviso to Section 60 of the CPC, it can be held that he has means to pay off the debt. 8. In the instance case, it stands proved that the judgment debtor has 138 cents of property as realisable assets to pay off the decree debt. I find that the decree holder has discharged the initial burden of proving the means of the judgment debtor by oral as well as documentary evidence. On the contrary, there is no evidence from the part of the judgment debtor and he miserably failed to controvert the evidence adduced by the decree holder. 9. Consequently, the impugned order under challenge is set aside and the court below is directed to restore the Execution Petition on the files and proceed in accordance with the prayer in the Execution Petition. The Revision Petition is allowed.