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2021 Supreme(Online)(KER) 26955
HIGH COURT OF KERALA
A. BADHARUDEEN, J
SHIHAB – Appellant
Versus
SHRIRAM TRANSPORT FINANCE CO.LTD – Respondent
CRP/348/2021
SRI.PRATHEESH.P, SMT.ANJANA KANNATH, SMT.T.S.SREEKUTTY
Credible evidence is essential in determining a judgment debtor's financial capability before issuing an arrest warrant in execution proceedings.
Headnote:
Revision - Execution Proceedings - Order Setting Aside - Remittal for Fresh Determination
Fact of the Case:
The revision petition was filed against an order in execution proceedings where an arrest warrant was issued against the petitioner. The petitioner contested the lack of evidence proving their ability to pay the decree debt.
Issues: Whether the lower court's order for an arrest warrant was justified based on the evidence presented regarding the petitioner's financial capability.
Ratio Decidendi: The court emphasized the necessity of credible evidence to support claims of the judgment debtor's financial standing before enforcing execution measures.
Final Decision: The revision petition is disposed of and the lower court's order is set aside, remitting the matter for fresh evaluation.
O R D E R
This Revision Petition has been filed against order dated 17.11.2021 in E.P.No.1232/2017 in Arbitration case No.876/2012 on the file of Additional District Court-IV, Kollam. Revision petitioner is the 2nd judgment debtor in the above Execution Proceedings.
2. According to the learned counsel for the revision petitioner, the learned District Judge, in the execution of the award passed by the Arbitrator, ordered arrest warrant against the revision petitioner though no documents or convincing evidence placed by the decree holder to substantiate the fact that the revision petitioner is having sufficient means and is capable of paying the decree debt. It is highlighted by the learned counsel for the revision petitioner further that in paragraph No.4, the learned District Judge relied on evidence of PW1 stating that the revision petitioner has been in occupation of landed property and house. That apart he owns many vehicles and is getting Rs.25,000/- every month as rent of the vehicles. But no materials let in this regard.
3. On perusal of the order, the evidence given by PW1 in this regard, alone was taken into consideration by the learned District Judge.
4. The decree sought to be executed comes to Rs.84,746/-. Though the decree holder raised contention that the revision petitioner is having landed properties and vehicles to give for rent, no records in this regard has been produced. On perusal of the order, the same is not so vivid as to satisfaction recorded by the learned District Judge, regarding the means of the revision petitioner to pay the decree debt.
In view of the matter, the order impugned is set aside after dispensing notice to the otherside. The matter is remitted back to the Additional District Judge-IV, Kollam for passing fresh order regarding the means of the revision petitioner by permitting the decree holder as well as the judgment debtor to adduce evidence/further evidence in this regard. The District Judge shall do such exercise, within two months from the date of production of the copy of the judgment or receipt of judgment from this Court. Registry shall forward a copy of the judgment along with back records to the Additional District Court-IV, Kollam within 7 days.
Accordingly, the revision petition stands disposed of.
Sd/-
A.BADHARUDEEN, JUDGE.
ww APPENDIX OF CRP 348/2021 PETITIONER'S ANNEXURES:
ANNEXURE 1 THE COPY O THE E.P.NO.1232/2017 IN ARBITRATION CASE NO.876/2012 DATED
18.12.2017.
ANNEXURE 2 THE COPY OF THE AFFIDAVIT FILED BY ONE BALACHANDRAN BEFORE THE COURT BELOW DATED 18.7.2017.
ANNEXURE 3 THE COPY OF THE AFFIDAVIT FILED BY THE REVISION PETITIONER DATED 25.3.2018 IN E.P.NO.1232/2017 IN ARBITRATION CASE NO.876/2012.
ANNEXURE 4 THE COPY OF THE 2ND AFFIDAVIT FILED BY THE POWER OF ATTORNEY HOLDER OF THE
1ST RESPONDENT DATED 11.11.2021.
