Ramachandran alias Ramu v. Manju and Silpa

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.HARILAL** **TUESDAY, THE 7TH DAY OF JUNE 2016/17TH JYAISHTA, 1938** **CRP.No. 193 of 2016** **--------------------** **[AGAINST THE ORDER DATED 27/11/2015 IN EP NO.13/2015 IN CC NO.530/2014 OF THE MUNSIFF'S COURT, KAYAMKULAM.]** **REVISION PETITIONER/JUDGMENT DEBTOR NO.2:** **-----------------------------------------** ## **RAMACHANDRAN ALIAS RAMU,** **S/O PEETHAMBARAN, AGED 45, AYYANKOIKAL VEEDU, (WRONGLY SHOWN AS KOIKAL VEEDU IN THE EXECUTION PETITION FILED BY THE DECREE HOLDERS), KANNAMPALLY BHAGAM MURI, KEERIKKAD VILLAGE, KAYAMKULAM PO, ALAPPUZHA DISTRICT, PIN:690502.** ## **BY ADV. SRI.PRAKASH P.GEORGE** **RESPONDENTS/DECREE HOLDERS: ---------------------------** **1. MANJU,, AGED 40 YEARS, W/O RAJENDRANATH, 'SRUTHI', CHERAVALLY MURI, KAYAMKULAM VILLAGE, KAYAMKULAM PO, ALAPPUZHA DISTRICT, PIN:690502.** **2. SILPA,** **AGED 21, D/O MANJU, 'SRUTHI', CHERAVALLY MURI, KAYAMKULAM VILLAGE, KAYAMKULAM PO, ALAPPUZHA DISTRICT, PIN:690502.** **R1 - R2 BY ADV. SRI.K.SHAJ ADV. SRI.RENJIT GEORGE** **THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07-06-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **K. HARILAL, J.** **-----------------------------------------------------C.R.P. No. 193 of 2016-E -----------------------------------------------------Dated this the 7[th] day of June, 2016** ## **ORDER** The petitioner herein is the 2[nd] Judgment Debtor in E.P.No.13/2015 in C.C.No.530/2014, on the files of the Munsiff's Court, Kayamkulam, and the respondents herein are the Decree Holders in the said Execution Petition. The said Execution Petition was filed for realisation of an amount of `6 lakhs with interest due to the respondents under the Award passed in the Adakath. 2. The respondents filed an application under Order 21 Rule 37 of the Code of Civil Procedure to issue a warrant against the petitioner on the ground that he has sufficient means to pay the decree debt; ## **C.R.P. No. 193 of 2016** -: 2 :- but they are wilfully delaying execution of the decree and if warrant is issued against him, the amount can be realised from the petitioner. 3. The petitioner filed objection contending that he has no means to pay the decree debt. It is also contended that the 2[nd] Judgment Debtor was hospitalised for his treatment and operation. So, huge amount had been spent for the treatment of the 2[nd] Judgment Debtor. Now, the 2[nd] Judgment Debtor has no business or other job. Due to change of circumstances, the 2[nd] Judgment Debtor is unable to pay the decree debt. Therefore, he prayed for disposal of the Execution Petition on a finding that he has no means to pay the decree debt. 4. Both sides adduced evidence. The Decree Holders produced Ext.A1 and the Judgment Debtors produced Exts.B1 and B2. The 1[st] Decree Holder was examined as P.W.1 and the 2[nd] Judgment Debtor was examined as D.W.1. After considering the evidence **C.R.P. No. 193 of 2016** -: 3 :- adduced by both parties, the Execution Court had arrived at a finding that the petitioner has sufficient means to pay the decree debt. Consequently, warrant has been issued to arrest and detain the 2[nd] Judgment Debtor in civil prison. The legality and correctness of the findings that the petitioner has sufficient means to pay the decree debt, are under challenge in this Civil Revision Petition. 5. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 6. The sum and substance of the arguments advanced by the learned counsel for the petitioner is that the Execution Court has miserably failed to appreciate evidence adduced by the petitioner in its correct perspective. It is submitted that the documents produced before the court below would prove that there occurred change of circumstance, which materially and adversely affected income of the petitioner and as a result of which, at present, the **C.R.P. No. 193 of 2016** -: 4 :- revision petitioner has lost his business and all sources of income. Even though the revision petitioner had owned and possessed one Innovo car and another Cheverolet Beat car, he sold away the Innovo car for raising funds to meet the treatment expenses of the petitioner and the Cheverolet Beat car was repossessed by the financier company by name 'Kotak Mahindra'. 7. In view of the submissions made at the Bar, the short point that arises for consideration is, whether the Execution Court can be justified in finding that the petitioner has sufficient means to pay to the decree debt. 8. Going by the impugned order, it could be seen that the petitioner has admitted that he owned and possessed one Innovo car and another Cheverolet Beat car. But, it is further contended that those cars were purchased with the financial assistance of the finance company and subsequently, the Innovo car ## **C.R.P. No. 193 of 2016** -: 5 :- was sold away to meet the treatment expenses of the petitioner and the Cheverolet Beat car was repossessed by the finance company, on default of payment. This Court is of the opinion that an ordinary prudent man having no means would not be daring enough to purchase a luxury premium vehicle even with the financial assistance of the finance company. That itself shows that he has sufficient means of living and was confident of his monthly income at the time of purchasing those vehicles. The purchase and subsequent holding of two premium luxury cars at a time would establish the sound financial status of the petitioner, though one was purchased by the financial help of the Finance Company. Even though it is contended that the Innovo car was sold away to meet the treatment expenses of the 2[nd] Judgment Debtor, no evidence had been adduced to substantiate the contention that the money obtained by selling the Innovo car was used for meeting the treatment ## **C.R.P. No. 193 of 2016** -: 6 :- expenses, as contended by the petitioner. In the absence of evidence to prove the purpose for which the said amount was used, it could be presumed that he is holding the money by cash. Similarly, no evidence was adduced to show that the Cheverolet Beat car was repossessed by the finance company, on default of payment, before the Execution Court. Even though Exts.B1 and B2 were produced before the Execution Court, those documents are photocopies only. I do not find any illegality in not accepting the said documents in evidence. 9. It is the further case of the petitioner that he was conducting chitty business and on 1/9/2015 at 4 p.m. fire broke out in his shop room and because of the same, all the valuables, including the documents in relation to the chitty business were destroyed due to fire. But, no evidence acceptable in law was adduced before the Execution Court, even though he made an attempt to produce a photocopy of the report prepared ## **C.R.P. No. 193 of 2016** -: 7 :- by the Station Officer, Fire and Rescue Station, Kayamkulam. Even if the said report is taken, at its face value, it is not sufficient to arrive at a finding that he has lost his all means of living. No other documents had been produced to substantiate the said contention. Where the Decree Holders succeeded in proving the means of the Judgment Debtor to pay the decree debt and the Judgment Debtor himself admitted that he had sufficient means; but now he has no means, the burden is on the Judgment Debtor to rebut the said evidence adduced by the Decree Holders, by establishing that he has lost his means of living subsequently. Here, going by the impugned order, it could be seen that the petitioner has miserably failed to rebut the evidence adduced by the Decree Holders. So also, he failed to prove that he has lost the means of living, which he had earlier. 10. In the above view of the matter, I do not find any illegality or impropriety in the reasonings; ## **C.R.P. No. 193 of 2016** -: 8 :- whereby the Execution Court arrived at a finding that the petitioner has sufficient means to pay the decree debt. 11. The learned counsel for the petitioner cited the decision reported in Jolly George Varghese v. Bank of Cochin [1980 KHC 322]. Going by the above decision, it is seen that the Apex Court held that where the Judgment Debtor if once had the means to pay the debt but subsequently after the date of decree, has no such means or he has money on which there are other pressing claims, that aspect also needs to be considered, otherwise, it will be violative of Articles 11 and 21 of the Constitution of India. I find that the said proposition is not applicable to the instant case wherein the 2[nd] Judgment Debtor has miserably failed to prove the subsequent change of circumstances or lose of means. This decision comes into application in cases where the Judgment Debtors succeed in proving the change of circumstances or **C.R.P. No. 193 of 2016** -: 9 :- change of means. This Civil Revision Petition is devoid of merits and dismissed accordingly. Sd/- **(K. HARILAL, JUDGE)** ## **Nan/** //true copy// P.S. to Judge