Sajan Gangadharan v. Salini K.C

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** ## **&** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY ,THE 21ST DAY OF AUGUST 2018 / 30TH SRAVANA, 1940** **OP (FC).No. 398 of 2018** **AGAINST THE ORDER IN EP 36/2014 in op 756/2009 of FAMILY COURT, CHAVARA DATED 30-05-2018** ## **PETITIONER/1st JUDGMENT DEBTOR:** **SAJAN GANGADHARAN AGED 46 YEARS AGED 46 YEARS,S/O. LATE G.GANGADHARAN, ASAN NIVAS,ASAN JUNCTION, EDAKULANGARA.P.O,KARUNAGAPPALLY** **BY ADVS. SRI.S.JAYAKRISHNAN (KARUNAGAPPALLY) SRI.D.SREEVALLABHAN** ## **RESPONDENT/DECREE HOLDER:** **SALINI K.C AGED 41 YEARS,D/O. K.G.CHANDRASEKHARAN,KOCHUKALATHARA HOUSE, PANANGAD.P.O.,KULANADA VILLAGE, PATHANAMTHITTA PIN 689 503** **BY ADV. SRI.M.R.SASITH PANICKER** **THIS OP (FAMILY COURT) HAVING BEEN FINALLY HEARD ON 13.08.2018, THE COURT ON 21.08.2018 PASSED THE FOLLOWING:** O.P.(FC) No.398/2018 2 ## **JUDGMENT** ## **R.Narayana Pisharadi, J** This Original Petition is filed under Article 227 of the Constitution of India challenging the legality and propriety of Ext.P6 order passed by the Family Court, Chavara in E.P.No.36/2014 on the file of that court. 2. The respondent herein is the wife of the petitioner. She had filed O.P.No.756/2009 in the Family Court, Thiruvalla against the petitioner and his mother seeking various reliefs. A decree was passed in that case on the basis of the compromise entered into between the parties. As per the decree, the petitioner is liable to deposit an amount of Rs.10,00,000/- in the bank account in the name of the respondent and the minor daughter. The petitioner is also liable to return the amount of Rs.2,80,000/- received by him from the father of the respondent. The respondent filed E.P.No.6/2014 in the Family Court, Thiruvalla for execution of the decree. It was transferred to the Family Court, Chavara for execution and numbered as E.P.No.36/2014. O.P.(FC) No.398/2018 3 3. One of the prayers in the execution petition is to execute the decree by the arrest and detention of the petitioner in civil prison. The respondent filed E.A.No.92/2015 to issue arrest warrant against the petitioner. On 30.05.2018, the execution court passed Ext.P6 order which reads as follows: _“Heard. From the evidence it is revealed that judgment debtor has sufficient means to pay off the liability and he is purposely evading payment. Hence issue arrest warrant to judgment debtor. Take steps. For return of arrest warrant, 30.06.2018.”_ The aforesaid order is challenged in this Original Petition. 4. We have heard the learned counsel for the petitioner as well as the respondent. 5. Learned counsel for the petitioner contended that the execution court has issued arrest warrant against the petitioner without issuing any notice to him under Order 21 Rule 37 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code'). Learned counsel for the petitioner has further contended that the impugned order passed by the execution court does not contain any discussion of the evidence adduced by the parties O.P.(FC) No.398/2018 4 regarding the means of the petitioner to pay the decree debt. 6. Per contra, learned counsel for the respondent contended that the decree passed against the petitioner is based on a compromise entered into between the parties and therefore, the petitioner is liable to pay the decree amount to the respondent without raising any objections. Learned counsel would further submit that the petitioner cannot raise any plea of no means to avoid the liability to pay the decree debt. 7. The execution petition filed by the respondent contains the terms of the compromise decree. The monetary reliefs granted to the respondent as per this decree, as stated in the execution petition, are the following: _“1) The car loan availed in favour of the petitioner from State Bank of India, Marakkada, Thiruvananthapuram through the account number 30029337324 has to be closed by the first respondent within one year from the date of decree, following that the petitioner should transfer the ownership of the Hundai accent car, KL-01 AK 6090 in favour of the first respondent._ _2) Patrimony amount of Rupees Ten lakhs which was entrusted to the first respondent by the father_ O.P.(FC) No.398/2018 5 _of the petitioner has to be deposited by him within one year from the date of decree, in favour of the petitioner and the minor daughter Gayathri in the account number 6711815798 of State Bank of Travancore, Kulanada Branch._ _3) The respondent has to return the personal loan amount of Rupees Two Lakh Eighty Thousand which was availed by him from the father of the petitioner within one year from the date of decree.”_ 8. A perusal of the impugned order passed by the execution court indicates that the decree holder had adduced evidence regarding the means of the petitioner to pay the decree debt. At the same time, the impugned order does not contain any discussion of such evidence. Ext.P6 order passed by the execution court is cryptic. However, it is to be noted that the decree debt consists of amount returnable by the husband to the wife, which the petitioner is bound in a fiduciary capacity to account. Therefore, the entire order passed by the execution court is not liable to be set aside for the reason that it does not contain discussion of the evidence regarding the means of the petitioner to pay the decree debt. 9. The decree debt consists of the amount of Rs.10,00,000/- O.P.(FC) No.398/2018 6 payable by the petitioner to the respondent and the minor daughter. It is an amount which the petitioner is liable to account in fiduciary capacity. As per Clause (c) of the proviso to Section 51 of the Code, when the decree is for an amount which the judgment debtor is bound in a fiduciary capacity to account, Clause (b) of the said proviso which insists for proof of the means of the judgment debtor to pay the decree debt as a condition for execution of the decree by the arrest and detention of him in civil prison has no application. 10. **Sunitha v. Ramesh : 2010 (3) KLT 501** was a case in which an estranged wife claimed the cash and value of the ornaments and articles entrusted with the husband at the time of marriage. On execution proceedings initiated by the wife, the husband took a plea of no means. A Division Bench of this Court found that a plea of 'no means' would not help the husband in so far as Clause (c) of the proviso to Section 51 of the Code enables the Court to execute the decree for payment of money by detention in prison if it is satisfied that “the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account”. 11. Therefore, in respect of the amount of Rs.10,00,000/- O.P.(FC) No.398/2018 7 payable by the petitioner to the respondent, he is not entitled to raise a plea of no means. But, in respect of the other amounts payable by him to the respondent as per the decree, it cannot be found that they are amounts which the petitioner is liable to account in a fiduciary capacity. In respect of those amounts, the petitioner is entitled to take a plea of no means. 12. Learned counsel for the petitioner has prayed that the arrest warrant issued against the petitioner by the execution court may be ordered to be kept in abeyance on the condition that he shall pay an amount of Rs.2,00,000/- within a period of two weeks. Learned counsel for the respondent has no objection to allow such a prayer. We are inclined to accept the prayer made by the petitioner in this regard on the further condition that he shall pay the balance amount of Rs.8,00,000/- within a period of six months. In respect of the other amounts payable by the petitioner to the respondent as per the decree, the execution court has to take a fresh decision regarding his means to pay the same and also his neglect or refusal to pay the same. 13. Consequently, we set aside the impugned order passed by the execution court as far as it relates to the amount of the O.P.(FC) No.398/2018 8 decree debt due from the petitioner to the respondent except the amount of Rs.10,00,000/- to be deposited by the petitioner in the bank account of the respondent and the minor daughter. The execution court shall take a fresh decision regarding the means of the petitioner to pay the decree debt except the abovementioned amount of Rs.10,00,000/- and his neglect and refusal to pay the same. As regards the abovementioned amount of Rs.10,00,000/-, the petitioner shall deposit an amount of Rs.2,00,000/- (Rupees two lakhs only) in the bank account of the respondent and the minor daughter, as stated in the decree, within a period of two weeks from today and he shall deposit the balance amount of Rs.8,00,000/- (Rupees eight lakhs only) within a period of six months from today. The arrest warrant issued against the petitioner, as far as it relates to the decree debt of Rs.10,00,000/-, shall be kept in abeyance for a period of two weeks. If the petitioner deposits the amount of Rs.2,00,000/- as directed above, the arrest warrant issued against him shall be kept in abeyance for a further period of six months from today. If the petitioner fails to remit the amount of Rs.2,00,000/- as directed above within a period of two weeks from today, the arrest warrant issued against O.P.(FC) No.398/2018 9 him for realisation of the amount of Rs.10,00,000/- shall revive and it shall be enforced against him immediately on the expiry of that period. The Original Petition is disposed of accordingly. ## **C.K.ABDUL REHIM, JUDGE** ## **R.NARAYANA PISHARADI, JUDGE** jsr/20/8/18 O.P.(FC) No.398/2018 10 ## **OP (FC).No. 398 of 2018 (R)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** EXHIBIT P1 TRUE COPY OF EP/2014 IN OP 756/09 BEFORE THE FAMILY COURT, CHAVARA EXHIBIT P2 TRUE COPY OF OBJECTION DATED 10.8.2015 JOINTLY FILED BY JDS 1 &2 IN EP 36/2014 IN OPC 56/09 OF THE FAMILY COURT, CHAVARA EXHIBIT P3 TRUE COPY OF THE AFFIDAVIT FILED BY DECREE HOLDER IN EP 36/2014 IN OPC 756/09 OPF THE FAMILY COURT, CHAVARA EXHIBIT P4 TRUE COPY OF THE EA 92/2015 IN EP 36/2014 IN OP 756/09 OF THE FAMILY COURT, CHAVARA EXHIBIT P5 TRUE COPY OF THE AFFIDAVIT FILED BY THE DECREE HOLDER IN EP 36/2014 IN OP 756/09 OF THE FAMILY COURT CHAVARA EXHIBIT P6 TRUE COPY OF THE ORDER DATED 30.5.2018 IN EP 36/2014 IN OP 756/09 OF THE FAMILY COURT, CHAVARA ## **RESPONDENTS' EXHIBITS:** NIL TRUE COPY PS TO JUDGE