IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 11TH DECEMBER 2008 / 20TH AGRAHAYANA 1930 CRP.No. 975 of 2005 --------------------- (AGAINST THE ORDER IN EP. 181of 2005 IN OS.299/2004 of PRL.MUNSIFF'S COURT-I,KOZHIKODE-I ) REVN. PETITIONERS/ RESPONDENTS/JUDGMENT DEBTORS: ---------------------------------------------------------------- 1. K.DIVAKARAN NAIR, RESIDING AT KOTTARAKUTH HOUSE, POST KARAPARAMBA, KACHERI AMSOM DESOM, KOZHIKODE. 2. C.RAJEEVAN, RESIDING AT KOTTARAKUTH HOUSE, POST KARAPARAMBA, KACHERI AMSOM DESOM, KOZHIKODE. BY ADV. SRI.P.A.HARISH RESPONDENT/PETITIONER/DECREE HOLDER ------------------------------------------------ UNION BANK OF INDIA, REPRESENTED BY CHIEF MANAGER, CALICUT MAIN BRANCH, CALICUT. BY ADV. SRI.A.V.THOMAS ADV. SRI.MATHEW B. KURIAN ADV. SRI.K.T.THOMAS ADV. SRI.V.M.KURIAN THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 11/12/2008 , THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.T. SANKARAN, J. ............................................. C.R.P. No. 975 OF 2005 ............................................... Dated this the 11th December , 2008 O R D E R The judgment debtors are the revision petitioners. The Execution Petition was filed for realization of a sum of Rs. 59,691/- and costs by arrest and detention of the judgment debtors. Notice was issued in the Execution Petition. The revision petitioners appeared and filed objections. They did not raise any plea of no means. They only prayed that they may be permitted to pay the decree debt in monthly instalments of Rs. 2,000/-. Apparently, the court below did not accept the request for permitting them to pay the decree debt in instalments. It would appear that the judgment debtors paid Rs.2,000/-. However, they were directed to pay a sum of Rs.10,000/- per month towards decree debt. That order was passed on 25.07.2005. The judgment debtors did not comply with that order. On 24.08.2005, the judgment debtors paid Rs.2,000/-. The court below passed the following order: “Rs.2,000/- paid. Issue warrant to the judgment debtors.” The order directing the judgment debtors to pay Rs.10,000/- per C.R.P. No. 975 OF 2005 2 month as well as the subsequent order directing to issue warrant of arrest are under challenge in this Revision. 2. Learned counsel appearing for the petitioners submitted that after the petitioners entered appearance, on the next posting date, the court below passed the order directing them to pay a sum of Rs. 10,000/- per month. Thereafter, on the failure of the petitioners to pay Rs.10,000/- per month, the court below directed to issue arrest warrant against the judgment debtors. Since there is no plea of no means by the judgment debtors, it is not necessary to undertake an investigation of the means of the judgment debtors. The court below has granted a breathing time to the petitioners to pay the decree amount. In fact, an indulgence was shown by the court below in favour of the petitioners to pay the decree amount at the rate of Rs.10,000/- per month. I am of the view that the order passed by the court below is a benefit conferred on the petitioners. However, they are very much aggrieved by that order because according to them, the question whether they are liable to be arrested and detained in civil prison is a mater to be considered by the court below after C.R.P. No. 975 OF 2005 3 affording an opportunity of being heard to them. No such enquiry was conducted by the court below. It is also pointed out that the request to pay the decree debt in easy instalments was not considered by the court below. 3. The court below could legally proceed with the Execution Petition. It need not direct the judgment debtors to pay the decree amount in instalments. If the decree is not complied with, the execution shall be proceeded with. The court below shall dispose of the Execution Petition, after affording an opportunity of being heard to the petitioners. At the same time, the direction to pay Rs.10,000/- is liable to be vacated. The court below shall proceed in accordance with law and pass appropriate orders in the Execution Petition, after affording an opportunity of being heard to the petitioners. The Civil Revision Petition is allowed in part in the manner indicated above. K.T. SANKARAN, JUDGE. lk