PRAKASAH Vs. CANARA BANK

JUDGEMENT

(1.) The Judgment Debtors in E.P.72/88 in the Court of Subordinate Judge, Thalassery are the revision petitioners. Respondent/the decree holder in O.S.67/82 filed the execution petition for realisation of an amount of Rs.95,915.28 from the revision petitioners by means of their arrest and detention. The 1st revision petitioner appeared through counsel pursuant to receipt of notice under O.21 R.37 and filed counter affidavit contending that he has no means to pay the decree debt or part thereof that there is no wilful neglect on his part to pay the decree amount. The 2nd petitioner/2nd judgment/debtor remained ex parte.

(2.) The decree holder produced Exts. A1 to A5 to prove that the 1st judgment debtor has means to pay the decree debt. No oral evidence was adduced by both sides. Ext.A1 is a photostat copy of an application filed by the 1st petitioner to permit him to sue as an indigent person. Ext. A2 is the report of the Tahsildar, Thalassery dated 19-9-88 stating that the 1st petitioner has got 2 acres and 37 cents of land and 5 acres of cashew garden. Ext. A3 is a counter affidavit filed in Ext. A1 petition and Ext. A4 is a sale deed dated 22-6-79 executed in favour of the 1st revision petitioner in respect of one acre of property. Ext. A5 is the prior title deed. It was contended on behalf of the 1st judgment debtor before the executing court that the properties referred in these documents have already been sold in execution of decrees obtained by the Syndicate Bank and Indian Bank against the 1st Judgment Debtor for debts due to them. But the court below rejected the above contention on the ground that in the counter affidavit filed by the 1st judgment debtor, no such plea that the properties were already sold in execution of other decrees had been taken and the 1st judgment debtor was not even examined as a witness. Accepting the materials available from the documents produced by the decree holder, the court below found that the 1st judgment debtor has means to discharge the decree debt and there is wilful negligence and refusal on his part to pay the decree debt. On these findings the warrant for arrest of the 1st judgment debtor was issued. Warrant was issued for arrest of the 2nd revision pelitioner/2nd judgment debtor also.

(3.) The attack on the impugned order by the 1st revision petitioner is mainly on the ground that the court below has wrongly relied on Exts. A1 to A4 documents which are not proved in the case in accordance with law. So long as these documents are not proved any material available from those documents cannot be treated as evidence in this case. Admittedly no witness is examined on behalf of the decree holder. It is not seen how the documents were marked. The respondent has no case that .those documents were marked as agreed by both parties. It has therefore to be found that there is justification in the complaint raised by the 1st revision petitioner. Apart from the above, it is further contended that the court below has wrongly assumed that the properties covered by the documents are still available with the judgment debtor for discharging the decree debt. According to him, these properties were already sold in execution of decree obtained by the Syndicate Bank and the Indian Bank. The reason given by the executing court for rejecting the above contention taken by the judgment debtor namely that he has not taken such a contention in the counter affidavit does not seem to be justified. Admittedly no reference to these documents was made in the application for execution filed by the decree holder. Under these circumstances, there was no occasion for the judgment debtor to give explanation regarding the non availability of the properties with him. In view of the above, I am inclined to hold that the finding entered by the court below that the 1st judgment debtor has means to pay the decree debt but there is deliberate negligent and refusal on his part to pay the decree debt is unjustified.