IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 27TH AUGUST 2008 / 5TH BHADRA 1930 WP(C).No. 25742 of 2008(M) -------------------------- (O.S.NO.1645 OF 2001 OF MUNSIFF COURT, THIRUVANANTHAPURAM.) PETITIONER: ------------ M.K.RAJEEV, HOUSE NO.320, PRASANTH NAGAR, FORT P.O., THIRUVANANTHAPURAM, NOW RESIDING AT BLOCK NO.2, T.C.16/0211 FLAT NO.306, VRINDAVAN GARDEN, PATTOM, THIRUVANANTHAPURAM. BY ADV. DR.K.P.SATHEESAN RESPONDENTS: ------------- T.K.SAJIKUMAR, VALIYAVILA VEEDU, VENGANOOR, NEYYATTINKARA, NOW RESIDING AT CHARUVILA PUTHENVEEDU, KATTACHALKUZHI VENGANOOR, NEYYATTINKARA, THIRUVANANTHAPURAM. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.25742 of 2008 ------------------------------- Dated this the 27th August, 2008. J U D G M E N T Petitioner is the judgment debtor and respondent the decree holder in O.S.No.1645 of 2001, on the file of Munsiff Court, Thiruvananthapuram. A decree for realisation of Rs.50,000/= due under a promissory note executed in November, 1998, was granted in favour of the respondent on 7.2.2004. As the petitioner did not pay the decree debt, respondent filed E.P.No.125 of 2007 for arrest and detention of the petitioner contending that petitioner has sufficient means and he wilfully neglected to pay the decree debt. Petitioner filed an objection contending that he has no means. Learned Munsiff on the evidence of decree holder as PW.1 and admission of the judgment debtor that he is employed in a college found that petitioner has sufficient means and directed his arrest. Ext.P4 order is challenged in this petition filed under Article 227 of the Constitution of India. W.P.(C) No.25742/2008 2 2. Learned counsel appearing for the petitioner was heard. 3. The argument of the learned counsel appearing for the petitioner is that petitioner is employed as an assistant in Co-operative Arts and Science College, and he is only getting a salary of Rs.3882/=, and the amount is not sufficient for his livelihood, and in such circumstances, the order of arrest is not sustainable. Learned counsel also argued that petitioner is prepared to pay the decree debt in instalments and therefore, Ext.P4 order is to be quashed. 4. Even though the decree holder was examined as PW.1 and deposed about the means of the petitioner, petitioner did not step into the box and denied the evidence of PW.1. It is admitted case that petitioner is employed as Senior Assistant Grade II in Co-operative Arts and Science College. Ext.P5 salary certificate produced by the petitioner shows that his total gross salary is Rs.7212/=. It also shows that after recovery, he is getting Rs.3882/=. It is not clear from Ext.P5 why Rs.2500/= is W.P.(C) No.25742/2008 3 being deducted from the salary. What ever it be, Ext.P5 establishes that he is getting a net salary of Rs.3882/=. In such circumstances, it cannot be said that finding of learned Munsiff is illegal or irregular warranting interference. 5. Though learned counsel appearing for the petitioner argued that petitioner is to be granted permission to pay the decree debt in instalments, subsequent to the date of the decree, such permission cannot be granted without the consent of the decree holder. Petitioner is at liberty to file an application for payment of decree debt in instalments before the executing court. If the petitioner pays one-tenth of the decree debt and files an application before the executing court to pay the balance in instalments, learned Munsiff to pass appropriate orders, in accordance with law. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.