IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 WP(C).No. 4071 of 2010(O) ------------------------------------- [EP.NO.195/2008 IN OS .NO.136/2005 OF ADDL.MUNSIFF'S COURT, ALAPPUZHA] .................... PETITIONER: ------------------- N.V.PHILIPOSE, S/O.VARKEY, NELLUVELIL HOUSE, VAZHAPRA P.O., RAMANKARY, KUTTANAD, ALAPPUZHA. BY ADVS. SRI.K.S.HARIHARAPUTHRAN, SRI.M.D.SASIKUMARAN, SRI.GEORGE MATHEW, SRI.DIPU JAMES. RESPONDENT: ---------------------- THOMAS CHACKO, S/O.CHACKO, KAKKANATTU HOUSE, CHENNAMKARI MURI, KAINAKARY SOUTH VILLAGE, KUTTANAD, ALAPPUZHA. BY ADVS. SRI.V.SATHEESH, SRI.A.KRISHNAN. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/08/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.4071/2010-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE EXECUTION PETITION DTD. 04/06/2008. EXT.P.2: COPY OF THE OBJECTIONS DTD. 06/07/2008. EXT.P.3: COPY OF THE ORDER DTD. 17/12/2009 IN E.P.NO.195/2008 IN O.S. NO. 136/2005. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.4071 of 2010 -------------------------------------- Dated this the 17th day of August, 2011. JUDGMENT Petitioner is the judgment debtor in E.P.No.195 of 2008 in O.S.No.136 of 2005 of the court of learned Additional Munsiff, Alappuzha. He has suffered a decree for payment of money. Respondent sought personal execution against petitioner claiming that petitioner is running a rice mill and flour mill and is getting sufficient income therefrom to discharge the liability. Petitioner filed objection contending that the said properties have already been auctioned, but he did not adduce any evidence in that regard. In the circumstances executing court by Ext.P3, order found means for the petitioner and ordered warrant of arrest. That order is under challenge. 2. Learned counsel for petitioner has contended that it is without sufficient evidence that Ext.P3, order was passed and warrant of arrest issued to the petitioner. It is contended that the executing court has found means on a wrong premise that, the fact of petitioner availing loan indicated his repaying capacity. Learned counsel for respondent supported the order under challenge. 3. It is not disputed by petitioner that he had a rice mill and flour mill. Necessarily, he must have been earning income therefrom. Though petitioner claimed that it was auctioned, no evidence in that line was produced. WP(C) No.4071/2010 2 4. This Court in Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) has held that though the initial burden of proving means of judgment debtor lies on the decree holder, strict proof of every details is not necessary and that if the decree holder has adduced some evidence regarding means, it is for the judgment debtor to rebut such evidence. Here the undisputed fact is that petitioner owned a rice mill and flour mill. Though petitioner has a contention that the said rice mill and flour mill were auctioned, no evidence to prove the same was produced. In the circumstances challenge to the impugned order cannot stand. 5. Learned counsel for petitioner requested that petitioner may be permitted to pay the amount due under the decree in installments. It is pointed out that `25,000/- has already been deposited in the executing court. Learned counsel for respondent submits that even adjusting that amount, around `73,689/- is still due. Having regard to the relevant facts and circumstances and hearing the views of learned counsel for respondent also, I am inclined to permit petitioner pay the balance amount due in ten (10) monthly installments. Resultantly this Original Petition is dismissed. But petitioner is permitted to pay the amount due under the decree in ten (10) monthly installments a stated below: WP(C) No.4071/2010 3 i. Petitioner is permitted to pay the amount due under the decree in ten (10) equal monthly installments beginning from 01.09.2011 onwards provided that by the last installment, the entire amount due is paid. ii. Payment/deposit in the executing court shall be made on or before 5th of each month. If that day happens to be a holiday, such payment/deposit shall be made on the next working day. iii. Then first payment/deposit to be made on or before 05.09.2011 shall be not less than `5,000/-(Rupees five thousand only). Rest of the payment shall be made in equal monthly installments with a rider that by the last installment the entire amount due has to be cleared. iv. In case of default in payment of any two installments, it will be open to the executing court to proceed with execution pursuant with the order under challenge without any fresh enquiry regarding means. v. Warrant of arrest issued to the petitioner shall remain in abeyance during the said period of ten (10) months beginning from 01.09.2011 or till there is default as above stated, whichever is earlier. THOMAS P.JOSEPH, Judge. cks