Sathish Ninan, J.

The original petition is filed challenging Ext.P2 order dated 26.08.2016 in E.P No. 3 of 2016 in O.S No. 480 of 2012 on the files of the Subordinate Judge's Court, Karunagappally. The judgment debtor is the petitioner in the original petition. The decree in O.S No. 480 of 2012 is one for realisation of 1,53,000/- with interest at the rate of 8% on the principal amount from the date of judgment till realisation. The execution petition was filed for realisation of the decree debt by arrest and detention of the judgment debtor as provided for under Section 51(c) of the Code of Civil Procedure (for short 'C.P.C').

2. Notice was issued to the judgment debtor on the execution petition under Order 21, Rule 37 C.P.C. The judgment debtor entered appearance and filed objections. Evidence was taken in the execution petition. On the side of the decree holder PWs 1 and 2 were examined and on the side of the judgment debtor DWs 1 and 2 were examined and Exts.B1 to B8 were marked. The execution court after considering the evidence, entered a finding that the judgment debtor has sufficient means to wipe off the decree debt and that the non-payment is wilful.

3. The judgment debtor had raised a further contention that he is suffering from serious illness and hence he is not liable to be arrested and detained in execution of the decree. To substantiate the said plea, the petitioner had relied on Exhibit B2 which is the case summary and discharge card of the year 2014. The court below after considering the evidence concluded that there is no evidence to reach a conclusion that the judgment debtor is suffering from such serious illness as to absolve him from the liability to be arrested as provided for under Section 59 C.P.C. It was further held that Section 59 comes into play only after the arrest of the judgment debtor. Accordingly, overruling the contentions raised by the judgment debtor, the execution court found that the judgment debtor is liable to be arrested and detained in civil prison in execution of the decree.

4. The copies of the depositions were made available to me by the learned counsel for the petitioner. On going through the evidence, it is seen that the decree holder has specifically pointed out the source of income of the judgment debtor. He has deposed that the judgment debtor is getting 5,000/- as his pension and 30,000/- from his hotel business. It is also stated that the judgment debtor has received an amount of 7 lakhs as retirement benefits. The judgment debtor has produced extract of his bank account to show that only an amount of 1,713/- is being received as monthly pension. On going through the evidence of PW1, it is seen that his specific assertion in the chief affidavit is that the judgment debtor has an income of 30,000/- from his hotel business. There was an attempt to challenge the same in cross examination. However, when the judgment debtor is examined as DW1, he did not have a case that the said hotel business as alleged by the decree holder does not belong to him. There is not even a whisper even in the chief affidavit filed by him to the said effect. Further, it is admitted that at the time of retirement he had received certain amounts, but according to him the said amounts were used by him for settling his liability with a Bank. However, but for the ipse dixit of the judgment debtor, no documentary evidence is produced to prove the same. The court below after considering the evidence adduced in the case has reached a conclusion on facts that the judgment debtor possesses necessary means to pay the amount covered by the decree and that the non-payment is wilful. I do not find any reason to interfere with the said factual finding.

5. Another contention raised by the learned counsel for the petitioner/judgment debtor is that the judgment debtor is suffering from serious illness and hence he is not liable to be arrested and detained in execution of the money decree. Shelter is sought to be