IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 22ND DECEMBER 2011 / 1ST POUSHA 1933 OP(C).No. 4257 of 2011(O) ------------------------- EP NO.387/2010 IN OS.218/2006 of ADDL.SUB COURT,KOTTAYAM .................... PETITIONER (S): -------------------- 1. SHAMEER C.N., S/O.ALIKUNJU, AGED 40, CHENNAPPALLIL HOUSE, MARAVANTHURUTHU PO., K.S.MANGALAM VILLAGE, VAIKOM-686608. 2. T.K.SUGATHAN, S/O.KOCHAPPI, AGED 50 YEARS, GREESHMAM HOUSE, MARAVANTHURUTHU P.O., K.S.MANGALAM VILLAGE, VAIKOM-686608. BY ADV. SRI.MATHEW PHILIP EDAPPALLIL RESPONDENT(S): --------------- 1. V.P.RAMANAN, S/O.PADMANABHAN, AGED 47 YEARS, AYYAMKULATH HOUSE, PROPRIETOR CUM THALAYAL AYYAMKULATH CHITTIES, HEAD OFFICE CHEMPU P.O., CHEMPU VILLAGE, VIKOM TALUK 686615. 2. M.R.SABU, S/O.RAJAPPAN, AGED 39 YEARS, SREEVILASAM HOUSE, MARAVANTHURUTHU P.O., K.S.MANGALAM VILLAGE, VAIKOM-686608. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 22/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(C)NO.4257/2011 APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE EXECUTION PETITION NO.387/2010 IN OS 218/2006 BEFORE ADDL.SUB COURT, KOTTAYAM EXT.P2 TRUE COPY OF THE AFFIDAVIT AND STATEMENT OF THE DECREE HOLDER EXT.P3 TRUE COPY OF THE OBJECTION FILED ON BEHALF OF THE PETITIONERS EXT.P4 TRUE COPY OF THE ORDER DATED 9.11.2011 IN E.P.NO.387/2010 IN OS NO.218/2006 BEFORE ADDL.SUB COURT, KOTTAYAM //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.4257 of 2011 -------------------------------------- Dated this the 22nd day of December, 2011. JUDGMENT Petitioners are judgment debtors 2 and 3 in E.P.No.387 of 2010 in O.S.No.218 of 2006 of the court of learned Additional Sub Judge, Kottayam. 1st respondent has obtained a decree for recovery of money from petitioners and 2nd respondent, the latter being the principal debtor and petitioners being the guarantors. 1st respondent wanted personal execution against petitioners and the 2nd respondent contending that in spite of having sufficient means they have failed/refused to pay the amount due under the decree. Executing court by Ext.P4, order found means of the petitioners and the 2nd respondent and ordered warrant of arrest. That order to the extend it concerned petitioners is under challenge. 2. It is contended by the learned counsel that there is no sufficient evidence to show that petitioners have sufficient means. Though, petitioners are employed as a Policeman and Excise Guard respectively, it is contended that their salary certificates are not produced. 3. Since petitioners are employed in Government service and are drawing salary, they are the best persons to speak about their salary and compulsory deductions if any, from it. It was possible for petitioners to produce their salary certificates to show the compulsory deductions if any which are OP(C)No.4257/2011 2 otherwise exempt from attachment under Section 60 of the Code of Civil Procedure so that they could contend that in considering means those deductions are to be reckoned. Nothing of that sort was done. I am not inclined to think that petitioners are not having sufficient means. I do not find reason to interfere with the finding regarding means of petitioners. 4. Alternatively learned counsel has requested that petitioners may be permitted to pay the amount due in installments. That is a request which petitioners have to make before learned Additional Sub Judge. However, in view of the said request I am inclined to grant some relief to petitioners subject to conditions. Resultantly this Original Petition is disposed of the following directions: i. Petitioners are permitted to request the executing court to permit them pay the amount due in installments. If any such request is made, the executing court shall consider that request and pass appropriate orders after hearing the 1st respondent/decree holder also. ii. Petitioners (both of them together) shall pay/deposit in the executing court for payment to the 1st respondent/decree holder `35,000/- (Rupees thirtyfive thousand only) within three weeks from this day. OP(C)No.4257/2011 3 iii. It is directed that warrant of arrest issued to the petitioners will stand in abeyance for one month from this day. iv. In case deposit as aforesaid is not made within the time specified, it will be open to the executing court to proceed with execution pursuant to Ext.P4, order. THOMAS P.JOSEPH, Judge. cks