Remanded

Kuttisankara Guptan v. Sivasankaran

Kerala HC7 Nov 2018CRP/152/2016

Case brief

AI extract

What is this about?

Revision petitioners challenged the dismissal of an execution petition where the trial court found the judgment debtor had no means. The High Court held the debtor had sufficient means, set aside the dismissal, restored the execution petition, and directed the lower court to proceed under Order XXI Rules 37 and 38 CPC.

What did the court decide?

Order dated 08.01.2016 set aside; execution petition restored to file; lower court directed to proceed under Order XXI Rules 37 and 38 CPC.

Kuttisankara Guptan Vs Sivasankaran — Execution and Attachment | Kerala HC (2018)

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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 P.SOMARAJAN

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WEDNESDAY, THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940

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CRP.No. 152 of 2016 (A)

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AGAINST THE ORDER IN E.P.No.169/2014 IN OS No.436/2011 of PRL.MUNSIFF COURT, PALAKKAD, DATED 08-01-2016

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REVISION PETITIONERS/PETITIONERS/DECREE HOLDERS:

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1 KUTTISANKARA GUPTAN, S/O APPU GUPTAN, AGED 71 YEARS, VALAPPILTHODI HOUSE, VAYILLAMKUNNU, KADAMPAZHIPURAM AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-678633.

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2 SREEKANTH, S/O KUTTISANKARA GUPTAN, AGED 35 YEARS, VALAPPILTHODI HOUSE, VAYILLAMKUNNU, KADAMPAZHIPURAM AMSOM DESOM, OTTAPALAM TALUK, PALAKKAD DISTRICT-678633.

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BY ADVS.SRI.RAJESH SIVARAMANKUTTY

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SMT.K.VIJINA

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SMT.RASHMI PATHIYIL

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RESPONDENT/RESPONDENT/JUDGMENT DEBTOR: SIVASANKARAN, S/O NARAYANATHARAKAN, AGED 56 YEARS, KAPPIL VEEDU, PARASSERY, PERINGODE AMSOM, PALAKKAD TALUK, PIN:679535.

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BY ADV. SRI.P.JAYARAM

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THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 07.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

C.R.P.No.152 of 2016

ORDER

Challenging the order dated 08.01.2016 in E.P.No.169/2014 in O.S.No.436/2011, the decree holders came up with this revision. The order under challenge is passed under Order XXI Rules 37 and 38 of the Code of Civil Procedure. A money decree in O.S.No.436/2011 was put in execution. The judgment debtor took a contention of no means. The learned Munsiff, after hearing both parties and going through the evidence adduced by PW1, Exhibits A1 and A2 and the oral evidence of RW1, found that the decree holders failed to prove that the judgment debtor has sufficient means to satisfy the decree and accordingly E.P. was dismissed, which is under challenge before this Court.

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Exhibit A1 is the settlement deed executed in favour of

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the judgment debtor by his father in respect of immovable property having an extent of 1 acre 3 cents. Exhibit A2 is the certified copy of the deposition made by the judgment debtor in another case, wherein he had admitted that he is presently employed in a Co-operative Society, but advanced a case that it is only a temporary one for which no document or satisfactory evidence was adduced. Nobody from the concerned Society was

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C.R.P.No.152 of 2016

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examined in that behalf. It has also come out in evidence that

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he is having a fractional interest, namely 1/4^th share over 35

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cents of property. It was admitted by the judgment debtor

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during the course of his examination. In so far as 1 acre 3 cents is concerned, it was submitted that there is an

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attachment over the property in another suit, for which no

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document was produced. Going by all these evidence it is clear that the judgment debtor is having sufficient means to pay off the decree amount. That has been overlooked by the learned Munsiff. The admissions which were made by the judgment debtor during the course of examination were also not properly appreciated, which has resulted in miscarriage of justice.

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Hence, the order of the Munsiff is liable to be set aside and I do so. The Execution Petition is restored to file. The Lower

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Court is hereby directed to proceed against the judgment debtor as mandated under Order XXI Rules 37 and 38 of the Code of

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Civil Procedure. The parties shall appear before the Lower Court on 26.11.2018.

Sd/-

P.SOMARAJAN

JUDGE

DMR/-

Kuttisankara Guptan v. Sivasankaran

Case brief

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Kuttisankara Guptan v. Sivasankaran

Case brief

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