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2009 Supreme(Ker) 1101

S.S.SATHEESACHANDRAN
Rajappan – Appellant
Versus
Shaju – Respondent


Judgement Key Points

No, the mere filing of an affidavit and examination of the decree holder (DH) is not necessarily sufficient to establish that the judgment debtor possesses the means to discharge the decree debt. The decree holder bears the initial burden of leading evidence to demonstrate the judgment debtor's means, which may require more than just the decree holder's own testimony or affidavit—such as witness testimony or other indicative circumstances. Only after such evidence is presented does the burden shift to the judgment debtor to prove incapacity or lack of means to the court's satisfaction. If the evidence is inadequate, the court may not sustain a finding against the judgment debtor. [judgement_subject][15000413440001][15000413440001]


ORDER

S.S. SatheesaChandran, J.

1. The revision is directed against an order passed by the learned Principal Munsiff, Irinjalakuda in E.P.No.1591/05 in O.S.No.714/04 where under 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 in chief, 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 diferent ve

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