Rajesh K. Nair v. Usha Kumari

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.T.SANKARAN TUESDAY, THE 28TH DAY OF OCTOBER 2014/6TH KARTHIKA, 1936 ## WP(C).No. 35165 of 2009 (O) ---------------------------AGAINST THE ORDER IN EP 31/08 IN OS 174/2004 OF MUNSIF COURT, KANJIRAPPALLY DATED 30.9.2009 PETITIONER(S): ---------------------- RAJESH K.NAIR, S/O. KRISHNAN, PALACKAL, VIZHIKKATHODU BHAGOM, CHERAPPADY KARA KOOVAPPALLY VILLAGE. BY ADVS.SRI.C.HARINDRAMOHAN NAIR SRI.SERGI JOSEPH THOMAS ## RESPONDENT(S): ------------------------- USHA KUMARI, W/O. SOMASEKHARAN NAIR, THUNDATHIL, THAMPALAKADU KARA KANJIRAPPALLY VILLAGE. R BY ADV. SRI.LIJI.J.VADAKEDOM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-10-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) No.35165/2009 ## APPENDIX ## PETITIONER'S EXHIBITS : EXT.P1: TRUE COPY OF THE FINAL DECREE DATED 30.6.2007 OF MUNSIFF'S COURT, KANJIRAPPALLY. EXT.P2: TRUE COPY OF THE APPEAL MEMORANDUM DATED 28.7.2008 IN A.S.NO.99/08 OF SUB COURT, PALA. - EXT.P3: TRUE COPY OF THE AFFIDAVIT AND NOTICE DATED 27.6.2009 IN E.P.NO.31/08 OF MUNSIFF'S COURT, KANJIRAPPALLY. - EXT.P4: TRUE COPY OF THE OBJECTION DATED 7.9.2009 TO AFFIDAVIT AND NOTICE. - EXT.P5: TRUE COPY OF THE CERTIFICATE DATED 4.10.2005 OF SREE CHITHRA TIRUNAL INSTITUTE FOR MEDICAL SCIENCES AND TECHNOLOGY, THIRUVANANTHAPURAM. EXT.P6: TRUE COPY OF THE ORDER DATED 30.9.09 OF MUNSIFF'S COURT, KANJIRAPPALLY IN E.P.NO.31/08 IN O.S.NO.174/04. ## RESPONDENT'S EXHIBITS : NIL //TRUE COPY// P.A. TO JUDGE **K.T.SANKARAN, J.** ----------------------------------- ## W.P.(C) No.35165 of 2009 ----------------------------------Dated this the 28[th] day of October, 2014 ## _**JUDGMENT**_ The question involved in this Writ Petition is, in a case where a decree for payment of money was passed and that was made a charge on the property of the judgment debtor, whether the decree could be executed by arrest and detention of the judgment debtor? Or whether it is necessary to proceed against the property first before the judgment debtor is sought to be arrested and detained in civil prison? 2. The petitioner is the brother of the respondent. A final decree was passed allotting properties to both parties in a suit for partition filed by the respondent. Owelty amount was directed to be paid by the respondent to the petitioner. As per the final decree, the petitioner was directed to pay mesne profits to the respondent at the rate of `33,712.50 per year from the date of suit till the respondent gets separate possession. The W.P.(C) No.35165/2009 2 final decree further directed the parties to deposit the nonjudicial stamp papers in proportion to their sharers. 3. The respondent deposited the stamp papers for engrossing the final decree as the petitioner did not do so. The petitioner also did not pay the mesne profits. Thereupon the respondents filed an Execution Petition to realise a sum of `1,32,027.50 from the petitioner, the amount being the mesne profits and the proportionate value of the stamp papers after deducting the owelty payable by the respondent to the petitioner, by arrest and detention. 4. The petitioner pleaded no means to pay the decree debt or a substantial part thereof. He contented that therefore he cannot be arrested and detained in civil prison. The petitioner also raised a contention that the decree for mesne profits was made a charge on the properties allotted to him and therefore the decree can be executed only by sale of the property allotted to the petitioner and not by his arrest and detention in civil prison. W.P.(C) No.35165/2009 3 5. The court below rejected the contentions put forward by the petitioner and warrant was ordered to be issued for the arrest of the petitioner. 6. The amounts claimed in the Execution Petition included the mesne profits as well as the proportionate value of the stamp paper which was payable by the petitioner but which was paid by the respondent. The final decree provides that the mesne profits would be a charge on the share of the petitioner. However, the decree does not provide that the proportionate value of the non-judicial stamp paper is made a charge on the properties allotted to the petitioner. Therefore, even if the contention of the petitioner that since a charge decree was passed, the petitioner cannot be arrested and detained in civil prison for realisation of the amount is accepted, that will not apply to the payment of the proportionate value of the stamp papers. 7. The co-sharer who was in possession and enjoyment of the property would be made liable to pay mesne profits to the W.P.(C) No.35165/2009 4 other co-sharer who was denied the share of profits. The mesne profits payable to a sharer would be made a charge on the property allotted to the co-sharer who is liable to pay the mesne profits in order to facilitate realisation of the mesne profits by proceeding against the property allotted to him. It is aimed at ensuring realisation of the mesne profits even if the property is transferred by the co-sharer who is liable to pay mesne profits. 8. Section 51 of the Code of Civil Procedure provides for the powers of the court to enforce execution. It includes execution of the decree by attachment and sale or by sale without attachment of any property as well as by arrest and detention in prison of the judgment debtor. Rule 30 of Order XXI of the Code of Civil Procedure provides that every decree for payment of money, including a decree for the payment of money as the alternative to some other relief, may be executed by the detention in civil prison of the judgment debtor, or by the attachment and sale of his property, or by both. However, in appropriate cases, the court may, in its discretion, refuse execution at the same time against the person and property of W.P.(C) No.35165/2009 5 the judgment debtor, as provided in Rule 21 of Order XXI of the Code of Civil Procedure. The decree for the payment of mesne profits in a partition suit can be executed in any manner in which a decree for payment of money can be executed. The mere fact that the main relief prayed for is for partition does not make the decree for payment of mesne profits a decree other than a decree for payment of money. So also, the mere fact that the decree is made a charge on the immovable property allotted to the judgment debtor, it does not mean that the mesne profits cannot be recovered except by proceeding against the charged property. A facility provided to the decree holder to realise the decree amount by proceeding against the charged property would not dis-entitle the decree holder from invoking any other relief to which he would be entitled to in the matter of execution of a decree for payment of money. The decree holder would be entitled to make a prayer for arrest and detention of the judgment debtor and also to sell the property which is made a charge for the payment of the mesne profits. However, the executing court may in appropriate cases exercise its discretion under Rule 21 of the Order XXI of the Code of Civil Procedure W.P.(C) No.35165/2009 6 and refuse simultaneous execution. In the present case, for the time being, the decree is sought to be executed by arrest and detention of the judgment debtor/petitioner. There is no order for sale of the immovable properties allotted to the petitioner/judgment debtor. I do not find any merit in the contention raised by the petitioner. 9. As regards the plea of no means, the court below found that the petitioner has sufficient means to pay the decree debt. An extent of 91.70 ares of land was allotted to the respondent as per the partition final decree. It is not in dispute that the land is planted with rubber. According to the decree holder, the judgment debtor gets a very good income from the property and he has accumulated an income of Rupees Five lakhs. 10. “Means” means “realisable assets”. Admittedly, the petitioner has realisable assets. The assets are sufficient for discharging the decree debt. He also gets income from the property. It is true that the burden of proving that the judgment W.P.(C) No.35165/2009 7 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 he refuses or neglects or has refused or neglected to pay the same is on the decree holder. When the decree holder proves that the judgment debtor has realisable assets, sufficient to pay off the decree amount, the burden of proof cast on him is discharged. In **Kuppuswamy v. P.G. Menon 1992(2) KLT 203** , it was held thus:- “6. It is true that the burden of proving the circumstances specified in S.51CPC lies on the decreeholder. Strict proof of every detail is not necessary. The decree-holder should give some indication or details of the properties or assets of the judgmentdebtor. It is competent to the executing court, on the materials placed before it, to draw an inference as regards the statutory finding required by S. 51 of the CPC. The question whether there are circumstances justifying the order for arrest is one of fact. - See R.M. Jassawala v. Amulya Chandra (AIR 1940 Allahabad 494). I am of the view that the requirement of S. 51 CPC will be satisfied if the judgment-debtor has means to pay the debt either from liquid resources or assets belonging to him which can reasonably furnish such resources. It is open to the execution court, on the materials placed before it, to draw an inference as W.P.(C) No.35165/2009 8 regards the statutory findings required by the section. If there is prima facie material on record about the means of the judgment-debtor, it is for the judgmentdebtor to rebut it. He is in a better position to know of his assets. See -John Chacko v. Thomas Varghese - ILR 1970(2) Kerala 109. The crucial words in clause (b) of the proviso to S. 51 CPC “the means to pay the amount of the decree or substantial part thereof” only mean that the judgment-debtor should have realisable assets from which the necessary money can be raised or realised to pay up the decree amount. (See -Xavier v. Canara Bank Ltd. -1969 KLT 927 and Mohamed Ibrahim v. State Bank of Travancore - AIR 1964 Madras 233). Where it is proved or admitted or otherwise evident that the judgment-debtor owns or possess a house or has got interest therein, the normal presumption is that he is able to pay the debt either by sale or mortgage or creating other encumbrance of the house. In such circumstances, it is open to the judgment-debtor to rebut the presumption and prove either that he does not own or possess the house or that no alienation or encumbrance is possible of that property.” 11. The learned counsel for the petitioner submitted that the decree holder was not examined in the case and therefore the court below was not justified in allowing the Execution W.P.(C) No.35165/2009 9 Petition. The purpose of adducing evidence is to prove certain facts. When such facts are attempted to be proved by the oral evidence, the opposite party would get an opportunity to crossexamine him and disprove what is sought to be proved. If no oral evidence is required to prove a particular fact, it is not necessary for a party to examine himself. In the present case, the final decree itself goes to show that an extent of 91.70 ares of property was allotted to the judgment debtor. It is also clear from the decree that the property is a rubber plantation. The mesne profits payable per year was fixed in the final decree at `33,712.50. There are only two sharers to whom the properties were allotted. The amount sought to be realised in the Execution Petition is a sum of `1,32,027.50. It is submitted that towards the decree debt, the petitioner/ judgment debtor had already deposited `45,000/- in compliance with the interim order passed by this Court. In the facts and circumstances, the decree holder cannot be expected to adduce any oral evidence to prove that the judgment debtor has sufficient means to pay the decree debt or a substantial portion thereof. As held by the court below, the means of the judgment debtor is proved in the case. W.P.(C) No.35165/2009 10 The refusal or neglect on the part of the judgment debtor is clear from the very pleadings and the consequent non-payment of the amount. The petitioner denied the benefits of the decree to his own sister though he got enough property as his share. The brother denies the share of profits which he got during the previous years and which was appropriated by him. 12. For the aforesaid reasons, I do not find any ground to interfere with the order passed by the court below. In the result, the Writ Petition is dismissed. **K.T.SANKARAN JUDGE** csl