RAJAPPAN Vs. SHAJU

JUDGEMENT

(1.) The revision is directed against an order passed by the learned Principal Munsiff, Irinjalakuda in EP No. 1591 of 2005 in OS No. 714 of 2004 whereunder the plea of no means canvassed by the judgment debtor was accepted. The decree holder has filed the revision impeaching the propriety and correctness of that order.

(2.) I heard the counsel on both sides. Previously the execution Court after enquiry has passed an order that the judgment debtor is possessed of sufficient means and a warrant was ordered against him for realising the decree debt. The judgment debtor challenged that order by way of a revision in CRP 774/07 before this Court. The revision was allowed and the case remitted for fresh consideration directing for affording opportunity to both parties to adduce evidence, both oral and documentary, in support of their respective case. Pursuant to such remission the decree holder examined one witness stated to be the employer of the judgment debtor. It is submitted that in his examination inchief, he gave a version that the judgment debtor was employed under him as a worker in dealing with gold ornaments, but in the cross examination, he gave a different version that the judgment debtor was with him only for 2-3 months to learn the making of ornaments from gold. No evidence other than what was let in earlier was tendered by the judgment debtor after remission. The learned Munsiff after appreciating the evidence let in the enquiry concluded that the decree holder has not established that the judgment debtor is possessed of sufficient means to discharge the decree debt. After going through the impugned order, I find the learned Munsiff is under a misconception that the decree holder is bound to prove that the judgment debtor is possessed of some landed properties or financial capacity by way of his employment or other means to discharge the decree debt. The burden cast on the decree holder is only to show that the judgment debtor is possessed of means to discharge the decree debt and he cannot be expected to prove the means of the judgment debtor with documentary evidence. Once the decree holder leads such evidence the burden shifts to the judgment debtor to show that he is not possessed of means and thus incapable of discharging the decree debt. The exemption provided by the statute from arrest on a warrant for the default in discharging the decree debt is carved in favour of the judgment debtor and he who claims that benefit must show to the satisfaction of the Court his incapacity and lack of means to discharge the decree debt. So the question to be considered is whether on the evidence tendered in the case the learned Munsiff was justified in entering a finding sustaining that plea of no means raised by the judgment debtor. Whatever be the reason for retraction of PW 3, who is stated to be the employer of the judgment debtor, prevaricating from his version in examination of chief during his cross examination, his evidence would indicate that the judgment debtor worked under him, probably only as an apprentice for about 2-3 months to learn the making of gold ornaments. His continuous attending for such work is a circumstance from which it could be gathered that he is capable of doing that work and has reasonable ability to generate income for his livelihood. Further more, despite an opportunity given by this Court to lead further evidence in the enquiry he was satisfied with whatever evidence already in the case before the remission. So on the materials placed the acceptance of the plea of no means canvased by the judgment debtor by the learned Munsiff cannot be sustained. The impugned order is set aside and the learned Munsiff is directed to consider the matter afresh and pass appropriate orders on the materials tendered, in the light of the observations made above. The revision is allowed.