IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE WEDNESDAY, THE 16TH JANUARY 2008 / 26TH POUSHA 1929 WP(C).No. 23737 of 2004(A) -------------------------- OS.316/1999 of PRL.SUB COURT,IRINJALAKUDA .................... PETITIONER: -------------------- RAJAN, S/O.PUTHIYEDATHUVEETIL KUNJAIYYAPPAN, BHOOPATHY DESOM, POYYA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.V.A.PRADEEP KUMAR RESPONDENTS: ------------------------ 1. ANJALI KURRIES & LOANS PVT.LTD; LOKAMALESWARAM VILLAGE AND DESOM, KODUNGALLUR TALUK, REP: BY ITS MANAGING DIRECTOR, BABU, S/O.THEVALIL KUMARAN. 2. RAVEENDRAN, S/O.THATTANPARAMBIL DIVAKARAN, KUZHUR DESOM, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. 3. RAGHUNANDANAN, S/O.VARAVOOR VEETTIL SANKUNNI MENON, KUZHUR DESOM, THIRUMUKKULAM VILLAGE, MUKUNDAPURAM TALUK. 4. SARADA, D/O.THATTANPARAMBIL CHATHUKUTTY, THIRUMUKALA VILLAGE. R1 BY ADV. SRI.V.M.KRISHNAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.23737/2004 A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT DTD. 2/08/2001 IN O.S.NO.316/1999. EXT.P2: COPY OF THE DEPOSITION OF THE PETITIONER AS RW1. EXT.P3: COPY OF THE EXT.B1 SALARY CERTIFICATE. EXT.P4: COPY OF THE ORDER DTD. 6/04/2004. /TRUE COPY/ P.A.TO JUDGE Kss PIUS C. KURIAKOSE,J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.23737 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 16th January, 2008 JUDGMENT Under challenge in this Writ Petition filed by the judgment- debtor is an order by which the court below has directed arrest and detention of the judgment debtor on the reason that he has not discharged the decree debt in spite of having sufficient means to do so. The total decree debt as claimed by the decree-holder is Rs.1,41,561/-. On noticing the contention of the petitioner that he has no means to pay the decree debt, the court below conducted an enquiry under Rule 40 Order XXI. The evidence consisted of Ext.A1 employment certificate relating to the petitioner on the side of the respondent-decree-holder and Ext.B1 salary certificate and the petitioner's testimony as R.W.1 on the side of the petitioner. Ext.B1 reveals that the petitioner is receiving net salary of Rs.1505/-. The court below relied on Ext.B1 to hold that the petitioner has having sufficient means to pay the decree debt. The writ petitioner impugns the order on the ground that the court below had not applied its mind to Section 60 of the C.P.C. The unattachable portion of the salary should not have been taken into account while reckoning his salary for the purpose of determining the liability to arrest. It cannot be said W.P.C.No.23737/04 - 2 - that the above ground is totally without merit. But at the same time, it should be noticed that the question which the execution court is called upon to decide while determining whether a judgment debtor is liable to be arrested in execution of a money decree is whether the judgment-debtor has after the passage of the decree sufficient means for paying off the decree debt or a substantial portion of the same. The enquiry in this case was conducted three or four years after the decree was passed. Even going by Ext.B1 salary certificate, the total emoluments drawn by the petitioner is Rs.4347/-. The salary certificate is of the year 2003 and the impugned order is passed in 2004. It is seen that the petitioner did not have much difficulty in complying with the order of this court passed on 11.8.04 that he shall pay a sum of Rs.10,000/- towards the decree debt. Under these circumstances, I dispose of the Writ Petition issuing the following directions: The order of stay presently passed by this court and in currency even now will continue for a period of six more months on condition that the petitioner pays a further amount of Rs.15,000/- towards the decree debt within one month from today. If it is seen that the petitioner has paid at least total amount of Rs.25,000/- (including the W.P.C.No.23737/04 - 3 - payment directed above after the impugned order was passed), the court below will reconsider the question whether the petitioner is liable to be arrested. As the first stage in the further enquiry in the matter, the petitioner will produce his latest salary certificate before the court below. Once latest salary certificate is produced by the petitioner, the court below will consider that salary certificate and pass fresh orders on the question as to whether the petitioner is liable to be arrested. It is made clear that if at least a sum of Rs.25,000/- is not paid as directed above towards the decree debt, the impugned order will stand confirmed. srd PIUS C.KURIAKOSE, JUDGE