KUNCHUMERRA RAWTHER ALI RAWTHER Vs. MATHAI THOMAS

JUDGEMENT

(1.) So far as the 1st petitioner (1st judgment debtor) is concerned, the impugned order undoubtedly is wrong. In the year 1976 the 1st petitioner was found to be a person having means to discharge the decree-debt or some substantial portion thereof, on that basis the Court below in a subsequent application has ordered issue of warrant for the arrest and detention of the petitioners in civil prison.

(2.) Sri K. N. Narayanan Nair, the counsel for the petitioners, submitted that a duty was cast on the Court to enquire into and record a finding on the question whether the judgment debtors had the means to pay off the decree amounts or some substantial portion thereof at the time when the decree was put into execution and by which process his freedom of movements was threatened to be taken away. In other words, his argument is that it was the duty of the Court to ascertain the means of the judgment debtor as it stood at the time when the present application for renewal of the execution was filed without resting content with the finding on the question on earlier occasion. In this connection he brought to my notice the well known observations of Krishna Iyer J., in Jolly G. Varghese v. Bank of Cochin, 1980 KLT 375 : ( AIR 1980 SC 470 ). After having considered the matter in the light of Art.11 of International Covenant on Civil and Political Rights and the relevant provisions of the Code of Civil Procedure like S.51 and O.21 R.37, what has been stated in Para.11 reads as follows:--

(3.) Sri Narayanan Nair on behalf of the petitioner then submitted that in the event of this Court holding that if not the 1st petitioner, at least the second petitioner, was liable to discharge the decree amount, the 2nd petitioner might be given six months' time to discharge the entire amount due under the decree that was being put into execution. The 2nd petitioner is stated to be a school teacher; considering the willingness expressed by him to discharge the entire liability under the decree, and viewed in the background of his limited resources, I think, there is justification for granting the time as prayed for by Sri Narayanan Nair.