IMPORTANT POINT
The court clarified that mere default in paying a decree is insufficient for incarceration; evidence of bad faith and refusal to pay despite having means is required.

ORDER :

V.G. Arun, J.

The revision petitioner is the second judgment debtor in E.P No.1670 of 2018 in O.S.No.300 of 2016 of the Additional Munsiff's Court, Irinjalakuda. The suit for return of money filed by the respondent against the revision petitioner and another was settled through mediation and a compromise decree passed. As per the terms of the compromise, the first judgment debtor was to pay an amount of Rs. 26,50,000/- to the decree holder on or before 31.08.2016 and the second judgment debtor/revision petitioner was to pay Rs. 52,00,000/- with interest at the rate of 18% from 30.05.2015, plus an additional sum of Rs. 10,00,000/-. The amount due under the decree was charged over the immovable properties of the revision petitioner.

2. As the revision petitioner failed to discharge the decree debt, the respondent filed E.P.No.4363 of 2017, seeking to realise the amount from the immovable properties of the revision petitioner. Thereupon, it came to light that there was already a charge over the properties at the behest of the Punjab National Bank. Therefore, that execution petition could not be proceeded with and was dismissed. The respondent thereupon filed E.P.No.1670 of 2018 seeking arrest and detention of the revision petitioner in civil prison for refusal to clear the decree debt in spite of having sufficient means.

3. In the execution petition, the respondent alleged that the first judgment debtor had paid off his liability, whereas the revision petitioner refused and neglected to pay any amount, despite receipt of huge income from his business in manufacture and sale of allopathic medicines. In his objection, the revision petitioner refuted the averments in the execution petition and contended that all his businesses are under loss and the immovable properties were attached by the Punjab National Bank.

4. In order to prove his case, the respondent examined himself as PW1, the Health Supervisor of Irinjalakkuda Municipality as PW2 and produced Exts.A1 to A8 documents. On the revision petitioner's side, he was examined as RW1, the Branch Manager of Punjab National Bank as RW2 and got Exts.B1 to B13 documents marked. In addition, Exts.X1 to X6 were marked as Court Exhibits. By the impugned order, the court below found the revision petitioner to be having sufficient means and to have wilfully neglected payment towards the decree debt. Consequently, it was held that the revision petitioner can be arrested and detained in prison. Aggrieved, this revision petition is filed.

5. Learned Counsel for the revision petitioner contended that the court below committed gross illegality in finding the revision petitioner to be a person with sufficient means. It is contended that the finding is based entirely on the documents produced by the respondent. According to the learned Counsel, even those documents will not prove that the revision petitioner's capacity to pay the amount and that he had refused or neglected to pay the amount. It is contended that the court below grossly erred in relying on the fact that the status of some of the revision petitioner's companies is shown as active in the official website of the Registrar of Companies, to hold that the companies are functioning and the petitioner is earning income from them. It is submitted that the balance sheet with respect to those companies has been filed only up to the year 2014 and the drug licence of two of the companies has been cancelled. Moreover, the immovable properties in which the companies were functioning are attached and put up for sale by the Punjab National Bank. Even the residential property of the revision petitioner, which was given as security, was attached and sold by the Bank. The Health Supervisor of Irinjalakuda Municipality (PW2) had deposed that none of the business concerns are functioning at present. The Branch Manager of the Bank had stated that, possession of the revision petitioner's immovable properties were taken over by the bank. In the face of su