IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH SEPTEMBER 2010 / 23RD BHADRA 1932 WP(C).NO. 28327 OF 2010(O) ----------------------------------------- OS.45/2003 OF MUNI-MAGI.COURT,THODUPUZHA .................... PETITIONER(S): --------------------- MATHEW, S/O.AUGUSTHY, THENAMMACKAL HOUSE, OLAMATTOM KARA, THODUPUZHA TALUK. BY ADV. SRI.GEORGEKUTTY MATHEW RESPONDENT(S): ---------------------------- E.K.JOHN, S/O.KORAH, ELLICKAL HOUSE KOLANI KARA, THODUPUZHA VILLAGE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.28327 of 2010 ==================================== Dated this the 14th day of September, 2010 J U D G M E N T Judgment debtor in E.P. No.69 of 2004 in O.S. No. 45 of 2003 of the court of learned Munsiff Thodupuzha is the petitioner before me challenging Ext.P2, order that in spite of having means he has refused or neglected to pay the amount and issuing warrant of arrest to him. It is contended by learned counsel that petitioner has no means and there is also no evidence that he has got any means sufficient to discharge the liability under the decree. 2. Execution petition was filed in the year 2004 seeking personal execution against petitioner and the learned Munsiff found that petitioner has no means. That order was challenged in this court in C.R.P. No.557 of 2006 and this Court by order dated 01.03.2010 set aside the order of learned Munsiff and remitted the case to the executing court for fresh consideration of the issue observing that the very fact that petitioner has sold away his motor cycle indicated that he has sufficient means. After remand petitioner examined his father-in-law as D.W.2. Executing court found that petitioner has sufficient means and issued Ext.P2, order W.P(C) No.28327 of 2010 -: 2 :- which is under challenge in this Writ Petition. Learned counsel for petitioner contends that finding entered by the executing court is erroneous. 3. This Court in Kuppuswamy v. P.G. Menon (1992 [2] KLT 203) has stated the burden of proving the circumstances specified in Section 51 of the Code of Civil Procedure (for short, “the Code”) lies on the decree holder but strict proof of every detail is not necessary. The decree holder should give some indications or details of the properties or assets of the judgment debtor. On such material it is competent to the executing court to draw an inference as regards finding required by Sec.51 of the Code. In the present case respondent has given evidence as P.W.1 and stated that petitioner is engaged in business of manufacture of mirrors and is earning Rs.50,000/- per month from that business. It is the further case that petitioner has 10 cents of land in Sy.No.609/9-3 of Thodupuzha town inherited by him from his mother and that property fetches Rs.5,000/- per year as income. He has also referred to other assets of petitioner. Respondent proved Exts.A1 and A2 which are the registration particulars of the motor cycle which petitioner was owning and possessing. Petitioner gave evidence W.P(C) No.28327 of 2010 -: 3 :- as D.W.1 and stated that his motor cycle was stolen on 26.06.2001 and to prove that he has produced Ext.B1, copy of the first information report. He admitted that later he purchased another motor cycle but he claimed to have sold it away on 15.03.2002. He claimed that himself and father are residing in the property which belonged to his deceased mother but claimed that since his liability in another suit was discharged by his father- in-law as revealed from Exts.X1 to X3 his mother has executed Ext.B3, Will in favour his father-in-law in respect of the property where himself and family are residing. D.W.2 is the father-in- law of petitioner. He supported the case of petitioner 4. It is true that mother of petitioner is said to have executed Ext.B3, Will in favour of father-in-law of petitioner for discharging other liabilities of petitioner as seen from Exts.X1 to X3. But Ext.B3 has not been proved as learned Munsiff has observed. Now as the position of law stands even a Will which is not disputed has to be proved by examining at least one of the attesters as provided under Section 63 of the Indian Succession Act. 5. I am not much at the question whether Ext.B3 has been proved. Certainly, that is an arrangement between mother W.P(C) No.28327 of 2010 -: 4 :- and father-in-law of petitioner. Fact remained that said property is now in the possession and enjoyment of petitioner and his father who are residing in the said property. It has come in evidence that petitioner was admittedly engaged in the business of manufacture of mirrors though according to him, 20 years back. But he did not produce any evidence to show that he sold the business. He admitted that his father is doing the same business in a portion of the building where they are residing (in Thodupuzha town). The father is not examined to show that the business belonged to him. Nor is there any evidence to show that the business is belonged to the father. A further fact revealed from evidence is that eldest daughter of petitioner is studying for nursing in a private college in Malappuram District. Version of petitioner as D.W.1 and his father-in-law as D.W.2 is that the latter is meeting the educational expenses of the children of petitioner. True it is so stated. But the question is whether that statement can be accepted and believed. Executing court was not inclined to accept that. It has also come out in evidence that petitioner owns a telephone in his residential building and he is paying monthly charges of Rs.500-600/- These circumstances indicated that it is not as if petitioner is not having sufficient W.P(C) No.28327 of 2010 -: 5 :- means. Instead he was making concerted attempt to avoid payment of amount due under the decree which cannot be encouraged. On gong through the order under challenge and hearing counsel I am satisfied that respondent-decree holder has adduced evidence from which an inference that petitioner has sufficient means could be drawn and that is what has been found by the executing court. I find no reason to interfere. 6. Learned counsel for petitioner, without prejudice to the contentions petitioner has raised and found against, has requested that petitioner may be given opportunity to pay the amount in installments. Learned counsel for respondent was not agreeable for that much installments as requested by learned counsel. It is also pointed out that request for installment facility could be made in the executing court. Having regard to the facts and circumstances of the case I am inclined to direct that warrant of arrest issued to the petitioner will stand in abeyance for two months but subject to conditions. Resultantly, this Writ Petition is dismissed. Petitioner is granted two months’ time from this day to pay the amount due under the decree subject to the following conditions: W.P(C) No.28327 of 2010 -: 6 :- (i) Petitioner shall deposit in the executing court for payment to respondent Rs.25,000/- (Rupees Twenty five thousand only) within one month from this day. (ii) It will be open to the petitioner to request the executing court to permit him to pay the balance amount in installments and if any such request is made the executing court shall decide that request after hearing learned counsel for respondent as well. (iii) Warrant of arrest shall remain in abeyance during the said period of two months or till default in deposit of the amount as stated in clause (i) is committed in which case it will be open to the respondent to proceed with personal execution pursuant to Ext.P2, without any further enquiry as to means unless in the meantime executing court has permitted petitioner to pay the amount in installments. THOMAS P. JOSEPH, JUDGE. vsv