Kerala High Court
Divakaran Aged 61 Years vs Meppayur Service Co-Operative Bank ... on 8 April, 2015
Author: K. Abraham Mathew
Bench: K.Abraham Mathew
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW
MONDAY,THE 2ND DAY OF NOVEMBER 2015/11TH KARTHIKA, 1937
OP(C).No. 1518 of 2015 (O)
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PETITIONER/RESPONDENT/1ST RESPONDENT:
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DIVAKARAN AGED 61 YEARS
S/O.KRISHNAN NAIR, MADATHIL HOUSE, KOZHUKKALLUR AMSOM
NIDUMPOYIL DESOM, KOYILANDY TALUK
NOW RESIDING AT ARIKKULAM AMSOM DESOM
KOYILANDY TALUK.
BY ADV. SRI.MOHANAN V.T.K.
RESPONDENT/PETITIONER/DECREE HOLDER:
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MEPPAYUR SERVICE CO-OPERATIVE BANK NO.D.2019
REPRESENTED BY ITS SECRETARY, MAPPAYUR, KOZHIKODE
PIN: 673 524.
BY ADV. SRI.K.P.SUDHEER
THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 02-11-2015, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP(C).No. 1518 of 2015 (O)
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APPENDIX
PETITIONER(S)' EXHIBITS
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P1: COPY OF THE ORDER IN EP NO.77/2014 IN ARC 1/2012 DATED 8/4/2015 OF THE
MUNSIFF'S COURT, KOYILANDY
P2: COPY OF THE ANSWER TO THE INTERROGATORY IN EA NO.242/2014 IN E.P
77/14 IN ARC 1/12 ON THE FILE OF THE MUNSIFF'S COURT, KOYILANDY
DATED 28/1/2015.
P3: COPY OF THE MEDICAL PRESCRIPTION ISSUED TO THE PETITIONER FROM
AMRITA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH CENTRE
P3(A): COPY OF THE MEDICAL PRESCRIPTION ISSUED TO THE PETITIONER FROM
MIMS HOSPITAL DATED 29/4/2015.
P3(B): COPY OF THE MEDICAL PRESCRIPTION ISSUED TO THE PETITIONER FROM
CHEST HOSPITAL, CALICUT DATED 20/5/2013
RESPONDENT(S)' EXHIBITS: N I L
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//TRUE COPY//
PA TO JUDGE
JV
K. ABRAHAM MATHEW, J.
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O.P.(C). No. 1518 of 2015
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Dated this the 2nd day of November, 2015
JUDGMENT
Petitioner is the Judgment Debtor in E.P. No.77/2014 of Munsiff's Court, Koyilandy. A notice under Order 21 Rule 37 CPC was issued to him. He pleaded no means. By the impugned order, the learned Munsiff has ordered his arrest and detention in civil prison in execution of the decree for money.
2. Heard.
3. The learned Munsiff did not post the case for enquiry. He passed the impugned order only on the basis of an answer given by the petitioner to the interrogatories delivered to the petitioner. The learned Munsiff should have posted the case for enquiry so that the decree holder could have adduced evidence in support of his case that the judgment debtor has the means to pay the debt or a O.P.(C). No. 1518 of 2015 2 substantial portion thereof.
4. In the answer to the interrogatories the petitioner admitted that he gets 11,400/- as monthly pension. It was on this basis the learned Munsiff found that the petitioner has the means to pay the debt. But the learned Munsiff failed to take notice of Section 51 CPC. The explanation to the Section says that in the calculation of the means of the judgment debtor any property exempted from attachment shall be excluded. Under Section 60(1)(g) CPC stipends and gratuities allowed to pensioners of the government etc. are exempted from attachment. This Court in Leela Bhai v. Indian Overseas Bank [2014 (1) KLT 1036] held that the said provision is applicable to pension payable to a retired employee.
5. It is very clear that in any view of the matter the order passed by the learned Munsiff is not sustainable. But the respondent shall be given an opportunity to adduce evidence to prove that the O.P.(C). No. 1518 of 2015 3 petitioner has the means to pay the decree debt.
In the result, the original petition is allowed. The impugned order is set aside. The learned Munsiff is directed to post the EP for enquiry so that the respondent may prove that the petitioner has the means to pay the decree debt or a substantial portion thereof.
Sd/-
K. ABRAHAM MATHEW JUDGE ww/03/11/2015