P.S. Sreekumar S/o Subrahmanian Namboodiri and Subramanian v Rathnam W/o Ramachandran, Vijaya Latha W/o Swaminathan, Anandan, Vinodkumar, and Bindu Lathas, OP (MAC) No. 70 of 2017 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **THURSDAY ,THE 04TH DAY OF OCTOBER 2018 / 12TH ASWINA, 1940** ## **OP (MAC).No. 70 of 2017** **AGAINST THE ORDER DATED 24.4.2017 IN E.P.NO.198/2016 IN OP(MV)NO. 395/2013 OF M.A.C.T., PALAKKAD** ## **PETITIONERS:** **1 P.S.SREEKUMAR S/O.SUBRAHMANIAN NAMBOODIRI, PERUMANA ILLAM, OTHALLUR P.O, KOKKUR(VIA), MALAPPURAM DIST, NOW RESIDING AT PERUMANA ILLAM VEEDU, MANKARA P.O,PALAKKAD DIST.** **2 SUBRAMANIAN S/O.SREEKUMAR, PERUMANA ILLAM VEEDU,KATTUPARAMB, MANKARA, P.O, PALAKKAD DIST.,** **BY ADVS. SRI.C.R.REGHUNATHAN SRI.K.M.KURIAN** ## **RESPONDENTS:** **1 RATHNAM W/O.RAMACHANDRAN, OOTTUPULAYAKKAL HOUSE, MANKARA P.O,MANKARA GRAMA PANCHAYATH, PALAKKAD PIN - 678 613.** **2 VIJAYALATHA W/O.SWAMINATHAN, CHENGANMANAKODE, NALLEPPALLYGRAMA PANCHAYATH, CHITOOR, PALAKKAD DIST, PIN - 678 553. 3 ANANDAN AGED 43 YEARS, S/O.RAMACHANDRAN, OOTTUPULAYAKKAL HOUSE, MANKARA P.O, MANKARA GRAMA PANCHAYATH, PALAKKAD PIN - 678 613.** O.P.(MAC) 70/17 2 |**4**|**VINODKUMAR**| |---|---| ||**AGED 41, S/O.RAMACHANDRAN, OOTTUPULAYAKKAL HOUSE,**| ||**MANKARA P.O, MANKARA GRAMA PANCHAYATH,**| ||**PALAKKAD, PIN - 678 613.**| |**5**|**BINDU LATHAS**| ||**AGED 32 YEARS**| ||**W/O.JAIKRISHNAN, 3A2 WARD NO. 10,**| ||**THABAL OOLIYAR COLONY,**| ||**COIMBATORE, KURICHI MUNICIPALITY,**| ||**COIMBATORE - 641 023.**| ||**BY ADV. SRI.BINOY VASUDEVAN**| **THIS OP (MAC) HAVING BEEN FINALLY HEARD ON 04.10.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** O.P.(MAC) 70/17 3 ## **JUDGMENT** The petitioners, who are respondents 1 and 2 in O.P.(M.V.) No.395 of 2013 on the file of the Motor Accidents Claims Tribunal, Palakkad and the judgment debtors in E.P.No.198 of 2016 arising out of the award passed in that claim petition, have filed this Original Petition under Article 227 of the Constitution of India, seeking an order to set aside Exhibit-P1 order dated 24.4.2017 of the Tribunal in E.P.No.198 of 2016 in O.P. (M.V.)No.395 of 2013 and to direct the Tribunal to reconsider the matter. 2. On 12.6.2017, when this Original Petition came up for admission, urgent notice by speed post was ordered to the respondents, returnable in three weeks. Further proceedings pertaining to Exhibit-P1 order passed by the Tribunal in E.P.No.198 of 2016 in O.P.(M.V.)No.395 of 2013 was stayed on condition of depositing Rs.75,000/- by the petitioners, within three weeks from that date before the Tribunal. The said interim order, which was extended from time to time, is still in force. 3. A counter affidavit has been filed by respondents 1 to 4 opposing the reliefs sought for. The petitioners have also filed a reply affidavit. 4. Heard the learned counsel for the petitioners and also the learned counsel for respondents 1 to 4. Despite service of notice, none O.P.(MAC) 70/17 4 appears for the fifth respondent. 5. The sole issue that arises for consideration in this Writ Petition is as to whether any interference is warranted on Exhibit-P1 order dated 24.4.2017 of the Tribunal in E.P.No.198 of 2016 in O.P. (M.V.)No.395 of 2013. 6. Respondents 1 to 5, who are the claimants in O.P.(M.V.) filed E.P.No.198 of 2016, seeking execution of the award passed by the Tribunal dated 29.10.2015, whereby the petitioners herein were directed to pay the claimants a sum of Rs.2,80,570/- together with interest at the rate of 9% per annum from 4.6.2013 till realisation. To prove the means of the judgment debtor, the decree holder was examined as PW1. Though an opportunity was given to the judgment debtor to adduce evidence, he has not chosen to avail that opportunity. In such circumstances, after considering the available materials, the Tribunal by Exhibit-P1 order dated 24.4.2017 issued warrant of arrest against the petitioner. 7. In **Abraham T.J. and another v. M/s. Maharashtra Apex Corporation Ltd. and another (2011 (2) KHC 770)** this Court held that, under clause (b) of the proviso to Section 51 of the Code of Civil Procedure, in order to pass an order for arrest and detention of the judgment debtor in civil prison, the executing court has to arrive at a O.P.(MAC) 70/17 5 finding that the judgment debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same. Only on arriving at a finding as provided in clause (b) of the proviso to Section 51 of the Code of Civil Procedure, the executing court would be justified in passing an order for arrest and detention of the judgment debtors in civil prison. Such an order cannot be passed on surmises and conjectures. There must be clear evidence to prove the ingredients of clause (b) of the proviso to Section 51. The object of detaining a judgment debtor in civil prison for non-payment of the amount decreed is not to punish him. Detention in civil prison is aimed at enabling the decree holder to realise the decree for payment of money. Mere inability to pay the money does not render the judgment debtor liable to be arrested and detained in civil prison. 8. In **Secretary, Kallanode Service Co-op. Bank v. Philip Joseph (2014 (2) KHC 781)** this Court held that, 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 Code of Civil Procedure, 1908, it can be held that he has means to pay off the debt. 9. In **Rajappan v. Shaju (2009 (4) KHC 602)** this Court held O.P.(MAC) 70/17 6 that, burden cast on the decree holder is only to show that judgment debtor is possessed of means to discharge decree debt. The decree holder cannot be expected to prove the means 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. 10. Having considered the pleadings and materials on record and also the reasoning of the Tribunal in Exhibit-P1 order, this Court finds that the petitioners can be granted an opportunity to adduce evidence in support of their plea of no means, on payment of a cost of Rs.10,000/- to the claimant in O.P.(M.V.) No.395 of 2013. 11. In such circumstances, this Original Petition is disposed of setting aside Exhibit-P1 order thereby directing the Tribunal to reconsider the matter after affording the petitioners herein an opportunity to substantiate their plea of no means by adducing evidence, on payment of Rs.10,000/- as cost without prejudice to their plea of no means, within two weeks from the date of receipt of a certified copy of this judgment. On such deposit, the Tribunal shall reconsider the matter, after affording both sides an opportunity to adduce evidence. 12. It would be open to the claimants to move application before the Tribunal for withdrawal of an amount of Rs.75,000/- deposited by the O.P.(MAC) 70/17 7 petitioners herein in terms of the interim order of this Court dated 12.6.2017. Since the Execution Petition is of the year 2016, the Tribunal shall dispose of the matter finally within two months from the date of receipt of a copy of this judgment. Sd/- **ANIL K. NARENDRAN** **JUDGE** O.P.(MAC) 70/17 8 ## **APPENDIX** **PETITIONERS' EXHIBITS: EXHIBIT P1 ORDER OF MACT, PALAKKAD. EXHIBIT P2 TRUE COPY OF COMMUNICATION. EXHIBIT P3 TRUE COPY OF R.C EXHIBIT P6 TRUE COPY OF AWARD OF ADDITIONAL MACT, PALAKKAD IN O.P.(M.V.) NO.395/2013** ## **csl** **//True copy//** **P.S. To Judge**