IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 20TH MAY 2010 / 30TH VAISAKHA 1932 WP(C).No. 8212 of 2010(O) ------------------------- OS.354/2007 of ADDL.MUNSIFF COURT-II,NEYYATTINKARA .................... PETITIONER(S): --------------- P.PRATHAPACHANDRAN NAIR, S/O.PRABHAKARAN NAIR, AGED 54 YEARS, PRABHA SADANAM, OORUTTUKALA, NEYYATTINKARA POST, THIRUVANANTHAPURAM. BY ADV. SRI.K.P.SUDHEER SRI.V.C.MADHAVANKUTTY RESPONDENT(S): --------------- 1. STATE BANK OF TRAVANCORE, PARASSALA BRANCH, REP. BY ITS BRANCH MANAGER. 2. T.SELVARAJ, S/O.C.THOMAS, PEON, PARASSALA GRAMA PANCHAYATH, PARASSALA P.O., RESIDING AT T.S.BHAVAN, PARANKIMAMVILA, KODAVILAKAM, PARASSALA POST, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 3. V.SURESH KUMAR, S/O.K.VENUGOPALAN NAIR, SUB REGISTRAR, SUB REGISTRAR'S OFFICE, PERUMKADAVILA, NEYYATTINKARA, RESIDING AT PADMANABHAM, PANANTHADIKONAM, PARASUVAIKKAL POST, NEYYATTINKARA. ADV. SRI.R.S.KALKURA FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.8212/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE DECRE DATED 27.9.2008 IN OS NO.354/2007 PASSED BY THE MUNSIFF'S COURT, NEYYATTINKARA EXT.P2 TRUE COPY OF EP NO.127/2009 DATED 25.3.2009 IN OS 354/2007 FILED BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA EXT.P3 TRUE COPY OF IA NO.6053/2009 DATED 11.11.2009 TO SET ASIDE THE EXPARTE DECREE IN OS NO.354/2007 FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA EXT.P4 TRUE COPY OF IA NO.1344 OF 2010 DATED 1.3.2010 FILED BY THE PETITIONER HEREIN FOR STAYING EXECUTION PROCEEDINGS AS AGAINST THE PETITIONER BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA IN OS NO.354/2007 //TRUE COPY THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.8212 of 2010 -------------------------------------- Dated this the 20th day of May, 2010. JUDGMENT Petitioner is judgment debtor No.2 in E.P.No.127 of 2009 in O.S.No.354 of 2007 of the court of learned Munsiff, Neyyattinkara. He being the guarantor has suffered a decree for payment of money to respondent No.1 along with the principal debtor and another guarantor. As per the decree, more than Rupees one lakh is due, learned counsel for respondent No.1 submits. According to the learned counsel for petitioner, petitioner had paid Rs.15,000/- to respondent No.1 and pursuant to the order of this Court on 12.03.2010 another sum of Rs.15,000/- was deposited. So far as those payment/deposit are concerned, learned counsel for respondent No.1 submits that he has to get instruction from respondent No.1. 2. Challenge in this proceeding is to the order of the executing court issuing warrant of arrest to the petitioner on the finding that he has sufficient means to discharge the decree debt but, has willfully failed to do so. Though finding of the executing court is under vehement challenge, it is not disputed that petitioner is a Government servant working as Upper Division Clerk. Representative of respondent No.1 has given evidence regarding means of petitioner. It is true that it is for the decree holder to prove that judgment debtor has sufficient means. In Kuppuswamy v. P.G.Menon (1992 (2) KLT WP(C) No.8212/2010 2 203) this Court has held that it is not the requirement of law that the decree holder has to give every details as to the means of the judgment debtor and that when some evidence is adduced by the decree holder it is for the judgment debtor to adduce contra evidence. Petitioner/judgment debtor No.2 has not adduced contra evidence. In the circumstances the executing court is justified in relying on the evidence let in by respondent No.1/decree holder and ordering warrant of arrest. I do not find reason to interfere with that order. 3. Learned counsel for petitioner submits that seeking to set aside exparte decree petitioner has preferred application in the trial court with an application to condone the delay and an application for stay of execution of the exparte decree is also filed but, those applications have not been disposed of. He requested that warrant of arrest may be kept in abeyance for some time. I have heard learned counsel for respondent No.1 in that regard. 4. If the applications to set aside exparte decree, to condone the delay and for stay of execution of exparte decree have been preferred and the pre-enquiry steps are over, those applications have to be disposed of at the earliest. Having regard to the circumstances stated, I am inclined to keep the order of arrest warrant in abeyance for a period of one month from this day on condition that petitioner deposits with respondent No.1 R.20,000/- (Rupees twenty thousand only) within two weeks from this day. Resultantly this Writ Petition is disposed of in the following lines: WP(C) No.8212/2010 3 i. Learned Munsiff, Neyyattinkara is directed to dispose of the applications for setting aside the exparte decree, condonation of delay and for stay of execution of the decree if, the pre-enquiry steps are over, as expeditiously as possible. ii. The warrant of arrest issued to the petitioner will stand in abeyance for a period of one month from this day on condition that petitioner deposited a sum of Rs.20,000/- (Rupees Twenty thousand only) with respondent No.1 within two weeks from this day. iii. In case there is no stay of execution of decree it will be open to respondent No.1 to proceed with the execution for realisation of the amount due (less the amount if any deposited) pursuant to which warrant of arrest issued on the expiry of the said period of one month. THOMAS P.JOSEPH, Judge. cks