Remanded

Raveendran v. Gopakumar

Kerala HC12 Nov 2012CRP/136/2012

Case brief

AI extract

What is this about?

Single judge, High Court of Kerala, set aside the impugned order dismissing an execution petition on the plea of no means. The court held that after the decree holder led evidence, the burden shifts to the judgment debtor to prove incapacity. The matter was remanded for fresh consideration as both parties sought further opportunities to establish their contentions.

What did the court decide?

Set aside the impugned order; remanded the execution petition for fresh consideration with parties to appear on 10.12.2012.

Raveendran Vs Gopakumar — Execution and Attachment | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.CHITAMBARESH

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MONDAY, THE 12TH DAY OF NOVEMBER 2012/21ST KARTHIKA 1934

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CRP.No. 136 of 2012 ()

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EP.NO.81/2009 IN OS.NO.165/2005 of SUB COURT,NEYYATTINKARA

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REVISION PETITIONER/DECREE HOLDER:

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RAVEENDRAN, S/O.BHARGAVAN, RAVI NIVAS, VADAKKEVILA, PALLICHAL VILLAGE, PALLICHAL DESOM,NEYYATTINKARA.

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BY ADV. SRI.K.P.SUJESH KUMAR

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RESPONDENT(S)/JUDGEMENT DEBTOR:

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GOPAKUMAR,

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S/O.DIVAKARAN, CHAMAVILA VEEDU, BHAGAVATHI NADA, VENGANOOR DESOM, PALLICHAL VILLAGE, NEYYATTINKARA - 695 121.

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BY ADV. SRI.G.P.SHINOD SRI.RAM MOHAN.G. SRI.MANU V.

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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sts

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V.CHITAMBARESH, J.

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C.R.P.No.No.136 of 2012

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Dated this the 12^th day of November, 2012

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O R D E R

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The court below has by the order impugned upheld the plea of no means raised by the respondent/judgment debtor and dismissed the execution petition filed by the petitioner/decree holder. The decree holder was examined as PW1 and three other witnesses were examined as PWs.2, 3 and 4 to show that the judgment debtor has got the means to pay the decree debt. PW2 testified that the judgment debtor is conducting daily chitties to which he is a subscriber and PW3 testified that he has borrowed money from the judgment debtor on interest. PW4 was examined to show that the judgment debtor has about 10 to 15 milching cows in a cattle shed from which a sum of Rs.1,500/would be earned as income every day on a modest estimate.

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The judgment debtor though was examined as DW1 has

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not examined any other persons to show that he has no wherewithal to pay the decree debt. The burden shifts to the judgment debtor in the wake of the voluminous oral evidence

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C.R.P.No.No.136 of 2012

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adduced by the decree holder as held in Rajappan v. Shaju (2009 (4) KHC 602) and the relevant part of the judgment is

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extracted hereunder:-

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“After going through the impugned order, I find the learned Munsiff is under a misconception that the decree holder is bound to prove that the judgment debtor is possessed of some landed properties or financial capacity by way of his employment or other means to discharge the decree debt. The burden cast on the decree holder is only to show that the judgment debtor is possessed of means to discharge the decree debt and he cannot be expected to prove the means of the judgment debtor with documentary evidence. Once the decree holder leads such evidence the burden shifts to the judgment debtor to show that he is not possessed of means and thus incapable of discharging the decree debt. The exemption provided by the statute from arrest on a warrant for the default in discharging the decree debt is carbed in favour of the judgment debtor and he who claims that benefit must show to the satisfaction of the Court his incapacity and lack of means to discharge the decree debt. So the question to be considered is whether on the evidence tendered in the case the learned Munsiff was justified in entering a finding sustaining that plea of no means raised by the judgment debtor.”

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Both the decree holder as well as the judgment debtor

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wanted further opportunity to establish their respective contentions before the execution court. I am under the

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C.R.P.No.No.136 of 2012

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circumstances inclined to accede to the request and remand the matter to the court below for fresh consideration. The impugned order is set aside and E.P.No.81 of 2009 in O.S.No.165 of 2005 on the file of the court of the Subordinate Judge of Neyyattinkara is remanded. The parties will appear before the court below on 10.12.2012 and the court below shall take the proceedings to a logical end without delay.

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The civil revision petition is disposed of.

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V.CHITAMBARESH

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JUDGE

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mns/

Raveendran v. Gopakumar

Case brief

What is this about?

What did the court decide?

Raveendran v. Gopakumar

Case brief

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