IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 23056 of 2008(T) ------------------------------------------ (AGAINST THE ORDER DATED 28/06/2008 IN E.P.NO.26 OF 2004 IN O.S.NO.27 OF 2001 OF SUB COURT AT MUVATTUPUZHA) PETITIONER: 1ST JUDGEMENT DEBTOR: ------------------------------------------------------------- BEENY P. MARKOSE, S/O.MARKOSE, PULPARAYIL HOUSE, MANNATHOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. BY ADV. SRI.ALIAS M.CHERIAN RESPONDENTS: DECREE HOLDER-2ND JUDGEMENT DEBTOR AND 2 OTHERS: ------------------------------------------- 1. MRS. BENCY ISSAC, W/O. ISSAC, PROPRIETOR, ST. MARY'S KURIES & FINANCE, CENTRE JUNCTION, KOOTHATTUKULAM. 2. MRS. GIGI BENNY, W/O. BENNY, PULPARAYIL HOUSE, MANNATHOOR KARA, THIRUMARADY VILLAGE, MUVATTUPUZHA TALUK. 3. THE TAHSILDAR, TALUK OFFICE, MUVATTUPUZHA. 4. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, ERNAKULAM. BY ADV. SRI.BIJU ABRAHAM - R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008 ALONG WITH WPC.NO.23057 OF 2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23056/2008 T APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF EXECUTION PETITION IN E.P.NO.26 OF 2004. EXT.P2: COPY OF OBJECTION DTD. 03/09/2004 IN E.P.NO.26 OF 2004. EXT.P3: COPY OF THE ORDER DTD. 10/04/2006 IN E.P.NO.26 OF 2004 IN O.S.NO.27 OF 2001 ON THE FILE OF THE SUB COURT AT MUVATTUPUZHA. EXT.P4: COPY OF THE JUDGMENT DTD. 26/09/2006 IN WP.C.NO.14084 OF 2006. EXT.P5: COPY OF PROCEEDING NO.B4-6633/2000 DTD. 2/11/2005. EXT.P6: COPY OF ORDER DTD. 28/06/2008 IN E.P.NO.26 OF 2004 IN O.S.NO.27 OF 2001. EXT.P7: COPY OF JUDGMENT DTD. 13/12/2007 IN W.P.C.NO.35277 OF 2005. EXT.P8: COPY OF ORDER DTD. 27/06/2008 IN R.P.NO.672 OF 2008 IN WPC.NO.35277 OF 2005. EXT.P9: COPY OF APPLICATION DTD. NIL. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss M.SASIDHARAN NAMBIAR,J. =========================== W.P.(C) NO.23056 & 23057 OF 2008 =========================== Dated this the 8th day of August, 2008 JUDGMENT Petitioner is the judgment debtor in O.S.26/2001 and 27/2001 on the file of Sub Court, Muvattupuzha. A decree was passed in both the suits respectively on 18.2.2003 and 19.6.2003. The decree in O.S.26/2001 is for payment of Rs.1,84,842 with interest on the principal amount of Rs.1,41,270 at 9% per annum from 8.2.2003. The decree in O.S.27/2001 is for realisation of Rs.1,63,799 with interest at 9% on the principal sum of Rs.1,23,850/-. E.P. 26/2004 was filed for execution of the decree in O.S.27/2001 and E.P.475/2003 for execution of the decree in O.S.26/2001. These petitions are filed under Article 227 of the Constitution of India challenging Ext.P6 common order passed in both the EPs on 28.6.2008 directing arrest and detention of the petitioner finding that he has sufficient means W.P.(c)23056 & 23057 of 2008 2 to pay the decree debt. These petitions are filed contending that petitioner has no means to pay the decree debt in lumpsum and he may be permitted to pay the decree debt in instalments. 2. Learned counsel appearing for petitioner and first respondent decree holder were heard. 3. Learned counsel appearing for petitioner submitted that petitioner could not pay the entire decree debt because of his financial conditions and in such circumstance, he may be permitted to pay the decree debt in instalments. Learned counsel appearing for respondents pointed out that when petitioner earlier approached this court by filing W.P.(C) 14084/2006, as per Ext.P4 judgment dated 26.9.2006, this court directed the decree holder to proceed against the property and then only proceed against the petitioner in person. But the property could not be proceeded against as salestax arrears is there and learned Sub Judge found that petitioner has sufficient means and in such circumstance Writ Petitions are to be dismissed. 4. On hearing the learned counsel and W.P.(c)23056 & 23057 of 2008 3 going through Ext.P6 order, I do not find any illegality or irregularity warranting interference on the finding that petitioner has sufficient means to pay the decree debt. Learned counsel appearing for petitioner submitted that petitioner is prepared to pay the decree debt in instalments. Considering the said submission the executing court is directed to keep the order of arrest in abeyance to enable the petitioner to pay the balance decree debt, provided petitioner pays Rs.25,000/- each in the two execution petitions within two weeks from today and petitioner is permitted to pay the balance decree debt in 15 equal monthly instalments. The monthly instalment will fall due on the first of every month. If petitioner commits default in payment of any two consecutive instalments, executing court to execute the order of arrest. Writ Petitions are disposed of as above. M.SASIDHARAN NAMBIAR JUDGE tpl/- W.P.(c)23056 & 23057 of 2008 4 M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006