Muthukrishna Reddiar vs The Canara Bank Lid., Alleppey

Sadasivan, J.—This appeal is by the judgment-debtor against the order blowing personal execution against him. No evidence is seen to have been adduced in support of the decree holder''s prayer for personal execution. The judgment-debtor did not file his objections in time and later when he filed his objections, the same was summarily rejected, being belated. In a matter like this the onus is on the decree-holder. Here, apart from the affidavit, no evidence was adduced by the decree-holder. Even in the affidavit he has not pointed out any circumstance to enable the Court to order warrant. In para 3 of the affidavit he has however stated that by selling the defendant''s factory and accessories he has come by Rs. 37000/- in cash, but he has not stated when the factory was sold. For personal execution to follow one of the points to be established is that since the passing of the decree the judgment-debtor has had the means to pay the decree amount or a substantial part thereof. There is no evidence on this aspect of the matter. The case has hence to go back for evidence. The order is hence set-aside and the case is remanded to the Court below for a reconsideration of the matter after taking evidence and disposal according to law. The judgment-debtor may also adduce evidence if so inclined. Appeal is thus allowed. No costs in this court.