IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 1ST JULY 2010 / 10TH ASHADHA 1932 WP(C).No. 20426 of 2010(O) -------------------------- EP NO.26/2008 ARB.CASE NO.67/2006 of ADDL.DISTRICT COURT,KOTTAYAM .................... PETITIONER(S): --------------- ULAHANNAN THOMAS, S/O.THOMAS, AGED 56 YEARS, THENGUMPALLIL HOUSE,P.O.MANJOOR, KURPPAMTHARA, KOTTAYAM DISTRICT. BY ADV. SRI.O.P.NANDAKUMAR SRI.V.A.AJAI KUMAR RESPONDENT(S): --------------- 1. SHRIRAM TRANSPORT FINANCE COMPANY LTD., GEETHA COMMERCIAL COMPLEX, NAGAMPADAM, KOTTAYAM-1.,REP.BY ITS POWER OF ATTORNEY HOLDER, AND BRANCH MANAGER, K.SUNIL KUMAR, S/O.B.KAILAS, VADAKKEDATH DESOM KARA, CHANGAMAND VILLAGE ALUVA TALUK. 2. XAVIER THOMAS,S/O.THOMAS, THENGUMPALLIL HOUSE, P.O. MANJOOR, KURUPPANTHARA, KOTTAYAM DISTRICT-686603. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20426 of 2010 -------------------------------------- Dated this the 1st day of July, 2010. JUDGMENT Petitioner is the judgment debtor in E.P.No.26 of 2008 in Arbitration Case No.67 of 2006 of the court of learned Additional District Judge, Kottayam. Respondent No.1/decree holder sought personal execution against petitioner stating that inspite of having means petitioner has neglected or refused to pay the amount due under the decree. Representative of respondent No.1 gave evidence as PW1, while contra evidence is given by petitioner as RW1. Court below after consideration of the evidence passed Ext.P5, order finding that petitioner has means but he has neglected or refused to pay the amount. Consequence was an order for issue of arrest warrant for recovery of amount due under the decree. Learned counsel for petitioner contended that finding entered by learned Additional District Judge is not correct in so far as there is no acceptable evidence to prove that petitioner inspite of having means neglected or refused to pay the amount due under the decree. He therefore requested to interfere with Ext.P5, order. Alternatively it is argued that petitioner may be given opportunity to pay the amount in installments. Learned counsel has stated about the financial difficulty being experienced by petitioner and his inability to raise the entire sum amounting to more than Rupees four lakhs in lump. 2. I have gone through the order under challenge. It is seen that WP(C) No.20426/2010 2 petitioner in his evidence as RW1 admitted that he is running a cool bar (as against version of PW1 that it is a bakery) and that he has regular income from the said business. It has come in evidence that he owns 20 cents of land and a residential building in about two cents which is priced at about Rs.35,000/- per cent. Petitioner in fairness agreed that he is has a regular income and is capable of raising funds. It is taking into account these facts that Ext.P5, order is passed. No doubt, initial burden of proving means of judgment debtor is on the decree holder. But the decision in Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) says that it is not the requirement of law that decree holder has to give every details as to the source of income of judgment debtor and that if some evidence is adduced regarding means of judgment debtor it is for the latter to controvert that. Evidence given by RW1 does not successfully controvert evidence given by PW1 and instead, would corroborate that. In the circumstances I do not find reason to interfere with Ext.P5, order. 3. Request of the petitioner for some breathing time requires consideration. Amount due under the decree is more than Rupees four lakhs. Having regard to the circumstances I am inclined to grant petitioner two months’ time to pay the amount but subject to conditions. I make it clear that it will be open to the petitioner to request the executing court to grant installment facility ofcourse after hearing counsel for respondent No.1/decree holder as well. Resultantly this Writ Petition is disposed of in the following lines: i. Petitioner is granted two months’ time to pay amount due under the decree on condition that petitioner deposited Rs.50,000/- (Rupees fifty thousand only) in the executing court within one month from this day for WP(C) No.20426/2010 3 payment to respondent No.1/decree holder. During the said period of two months warrant of arrest issued against petitioner will stand in abeyance. ii. In case of non-payment of the amount due under the decree within two months or, failure to deposit Rs.50,000/- within the time prescribed it will be open to respondent No.1 to proceed with personal execution against petitioner. iii. The request made by petitioner for installment facility is relegated to the executing court for consideration and decision after hearing counsel for respondentNo.1/decree holder as well. THOMAS P.JOSEPH, Judge. cks