IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH JULY 2010 / 8TH SRAVANA 1932 CRP.No. 403 of 2010() --------------------- AGAINST THE ORDER DATED 14/06/2010 IN EP.343/2004 IN OS.162/1998 of I ADDL.SUB COURT, KOZHIKODE .................... REVISION PETITIONER(S): JUDGMENT DEBTOR/DEFENDANT: -------------------------------------------------------------------------------------------- CHAMPAYIL SUDHAKARAN, S/O.GOPALAN, ARAKKINAR, NADUVATTOM, KOZHIKODE. BY ADV. SRI.AVM.SALAHUDDEEN RESPONDENT(S): DECREE HOLDER/PLAINTIFF: ------------------------------------------------------------------------ M.K.JAYANANDAN, S/O.ACHUTHANANDAN, KARTHIKA, EAST HILL ROAD, KOZHIKODE. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/07/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.403 of 2010 --------------------------------------- Dated this 30th day of July, 2010 ORDER This revision is at the instance of judgment debtor in E.P.No.343 of 2004 in O.S.No.162 of 1998 of the court of learned Additional Sub Judge-I, Kozhikode. Respondent obtained a decree for realisation of money to the tune of Rs.3,79,900/- with future interest and cost. He sought the decree to be executed and requested for personal execution against petitioner stating that in spite of having means petitioner has either neglected or refused to pay the amount. Petitioner denied that he has sufficient means. Respondent gave evidence as PW1 and proved Ext.A1. According to the respondent, petitioner owns and possesses more than 2 acres of landed property. In proof of that, he produced Ext.A1, a copy of the partition deed. Petitioner contended that he has only 27 cents. But, petitioner did not enter the witness box. Executing court found relying on evidence of respondent as PW1 supported by Ext.A1 that petitioner has sufficient landed property, has sufficient means but, has refused or neglected to pay the amount. That finding was followed by an order for issue of warrant of arrest. That order is under challenge. Learned counsel for petitioner C.R.P.No.403 of 2010 : 2 : contends that finding of the executing court that petitioner has more than 2 acres of landed property is not correct and instead, he has only 27 cents of land. It is also argued by learned counsel that petitioner did not get sufficient opportunity to adduce evidence. 2. I am unable to accept the contention that petitioner was not given opportunity to adduce evidence. It is not stated that petitioner wanted to adduce evidence but, he was not given time nor is there reason to think so. Respondent produced Ext.A1 to show that petitioner has landed property of about 2 acres. There is nothing on record to show that subsequent to Ext.A1, petitioner has disposed of any portion of that property. Hence finding of the executing court that petitioner has sufficient landed property has to stand. This court in Kuppuswamy Vs. P.G.Menon (1992(2) KLT 203) has stated that initial burden of proving means is on the decree holder. But it is not as if decree holder has to bring evidence regarding details of al source of income of judgment debtor. If evidence given by decree holder gives some indication that judgment debtor has the means it is for the latter to rebut the presumption. It is also stated in the decision referred supra that “where it is proved or admitted or otherwise evident that the judgment debtor owns or possess a house or has got interest therein, the normal presumption is that he is able to pay the debt either by sale or mortgage or creating other encumbrance of the house.” Admittedly, petitioner owns landed property. It is not as if C.R.P.No.403 of 2010 : 3 : petitioner is not able to raise necessary funds to discharge the debt. I find no reason to interfere with the order under challenge. 3. Learned counsel states that appeal against judgment and decree is pending. But that is no bar for execution so far as it is not stayed. However, having regard to the circumstances stated by learned counsel I am inclined to give petitioner two months' time to discharge liability under the decree but subject to condition. Resultantly revision petition is dismissed. But petitioner is granted two months' time to deposit the balance amount due under the decree in the executing court on condition that petitioner deposit in the executing court for payment to respondent Rs.30,000/- (Rupees Thirty Thousand Only) within three weeks from this day. In case petitioner fails to make the deposit within the said time or the balance amount is not deposited within the time granted hereby, it will be open to the court below to proceed with execution pursuant to the impugned order without any further enquiry regarding means of petitioner. Warrant of arrest issued to the petitioner will stand in abeyance during the said period of two months or till default is committed in depositing the amount within three weeks, whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-