An Execution Court must evaluate all evidence related to a debtor's means before dismissing an execution petition based on claims of insolvency.

JUDGMENT

Dated this the 26th day of October, 2021 This original petition is filed under Article 227 of the Constitution of India, challenging the order passed by the Munsiff Court, Palakkad in E.P.No.166/2014 in S.T.No.1227/2013 dated 5th day of December, 2015, whereby the Execution Court found that there is no means for the judgment debtor to proceed in execution and accordingly, the execution petition was dismissed. It is thus challenging the legality and correctness of the said order, this original petition is filed.

2. The paramount contention advanced by the petitioner is that from Exhibits P8 to P10 advertisements, it is clear that the claim of no means to pay the decretal debt by the respondent is baseless; in Exhibit P10 advertisement made by the respondent /judgment debtor, it is clear that the catering business conducted by the respondent is actively pursuing business and catering to larger marriage functions as well; that Exhibit P8 pamphlet makes it clear that catering business is being conducted not only at Vadakkanthara, Palakkad but also has three different branches in Kozhijampara, Kunnathurmedu and Kuzhalmannam.; that the respondent is in possession and ownership of immovable properties, which would be sufficient to counter the claim of the respondent that he has no means to pay the decretal debt and that the execution court failed in appreciating the evidence let in by the original petitioner in the enquiry made by the Execution Court in regard to the means of the respondent judgment debtor.

3. I have heard learned counsel for petitioner Sri.P.R.Venkatesh, Sri.Johnson Varikkappathil appearing for the respondent and perused the pleadings and materials on record.

4. The question emerges for consideration is whether any interference is warranted to Exhibit P7 impugned order passed by the Execution Court ? In fact from Exhibit P7, it is clear and evident that the petitioner has adduced evidence and specifically deposed that the respondent has substantial income tax and in order to establish the same, various documents were produced. Exhibit A1 is the building tax receipt, which shows that respondent has residential house and certain documents produced by the petitioner would clearly suggest that the respondent is conducting catering business. Anyhow the Execution Court has appreciated the evidence let in by the petitioner, however, it was held that on the basis of certain suggestions made by the respondent in the cross examination that petitioner has become bankrupt because of the loss happened to him from the business and even his properties are involved in various legal proceedings. It was accordingly that the Execution Court concluded that the properties are not in a saleable condition. Therefore, according to the learned counsel for petitioner, when it was found that there is sufficient evidence in regard to the means of the respondent, the Execution Court went wrong in holding that since the properties of the respondent are involved in legal proceedings, it is not in a saleable condition, cannot be sustained.

5. On the other hand, learned counsel for respondent submitted that immovable property of the respondent is under attachment in other legal proceedings and it was understanding the said document only that the Execution Court held that the said properties cannot be proceeded with as the properties are not in a saleable condition.

6. I have evaluated the rival submissions made across the Bar. In my considered opinion, so far as the nature of enquiry in regard to the means of the judgment debtor is concerned, Execution Court need only identify as to whether there are properties for the judgment debtor, which can be proceeded with for executing the decree; whether the property of the judgment debtor is under attachment or proceeded in other legal proceedings that would not detain the Execution Court to proceed against the judgment debtor and his properties; whether the decree can be executed by selling off any