IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 WP(C).NO. 24762 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN EP.6/2009 IN OS.198/2002 OF MUNSIFF COURT, PALA .................... PETITIONER(S): ----------------------- P.G.NARAYANA PILLAI, CHERUKARA HOUSE, VALLICHIRA KARA, VALLICHIRA VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. BY ADV. SRI.P.BABU KUMAR SRI.P.YADHU KUMAR RESPONDENT(S): ------------------------ J.T.FINANCE REPRESENTED BY ITS PROPRIETOR, THOMAS, S/O.THOMAS, THULUVANANICKAL HOUSE, PAYAPPARA KARA, LALAM VILLAGE. ADV. SRI.JOSEPH T.JOHN SMT.S.SIBHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE PHOTOCOPY OF THE AFFIDAVIT FILED BY THE DECREE HOLDER BEFORE THE MUNSIFF'S COURT, PALA DATED 10.7.2009. EXHIBIT P2 TRUE PHOTOCOPY OF THE COUNTER AFFIDAVIT FILED BY THE PETITIONER BEFORE THE MUNSIFF'S COURT, PALA DATED 26.8.2009. EXHIBIT P3 TRUE PHOTOCOPY OF THE ORDER IN E.P. NO.6 OF 2009 IN O.S. NO.198 OF 2002 PASSED BY THE MUNSIFF'S COURT, PALA DATED 9.6.2010. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.24762 of 2010 ==================================== Dated this the 12th day of November, 2010 J U D G M E N T Judgment debtor in E.P. No.6 of 2009 in O.S No.198 of 2002 of the court of learned Munsiff, Pala is the petitioner before me challenging Ext.P3, order issuing warrant of arrest to the petitioner for recovery of the amount due under the decree. 2. Though notice on this petition was served on respondent there is no appearance before me. I have heard learned counsel for petitioner. 3. Petitioner is a retired processor server and according to the respondent, owns an Autorikshaw bearing Reg.No.KL- 35A/654. It is also stated that petitioner is driving the Autorikshaw and has sufficient means. Petitioner claimed that he is getting only Rs.3,050/- per month by way of pension, his daughter is a nursing student studying in Delhi on loan availed and on Government Scholarship and that his son is studying in the ITC, expenses of which are met by the Nuns of that institution. Petitioner denied that he owns an Autorikshaw. Representative of respondent gave evidence as P.W.1 and stated about the means of W.P(C) No.24762 of 2010 -: 2 :- petitioner. Petitioner gave contra evidence as D.W1. Executing court found that petitioner has sufficient means and ordered warrant of arrest to him. That order is under challenge in this petition. Learned counsel for petitioner contends that none of the ingredients mentioned in clause (b) of the proviso to Section 51 of the Code of Civil Procedure (for short, “the Code”) has been complied with before ordering warrant of arrest to the petitioner. Learned counsel placed reliance on the decisions reported in Harpal Singh v. Lala Hira Lal (AIR 1955 Allahabad 402), A.K.Subramania Chettiar v. A.Ponnuswami Chettiar (AIR 1957 Madras 777), Xavier v. Canara Bank Ltd. (1969 KLT 927), Karunakara Pillai v. Joseph (1976 KLT 433), J.K.Mathai v. Luckose Kurian (AIR 1979 Kerala 235) and Jolly George Varghese v. Bank of Cochin (AIR 1980 SC 470). 4. These decisions concerned requirements to be proved before issuing warrant of arrest to the petitioner. It is also stated that means and negligence to pay the amount have to be proved. In Xavier v. Canara Bank Ltd. (supra) there is reference to the substantial (subsequent) change in the economic circumstances of the judgment debtor. In that case after the earlier orders were W.P(C) No.24762 of 2010 -: 3 :- passed it called for investigation regarding means of petitioner. 5. No doubt the initial burden of proving means of judgment debtor is on the decree holder. In Kuppuswamy v. P.G.Menon (1992 [2] KLT 203) it was held that decree holder is not required to bring in evidence regarding all details of source of income of judgment debtor and that if some evidence is produced it is for the judgment to adduce contra evidence. 6. On the facts of the case it is not disputed that petitioner is a retired process server. Though he claimed that he is only getting Rs.3,050/- by way of monthly pension he did not produce any document in support of that contention except his oral version in the court below. A further fact I have to bear in mind is that his children are studying in reputed educational institutions. Petitioner's daughter is studying for nursing at Delhi and his son is studying in the ITC. May be petitioner has explanation that expenses are met either by raising loan or by scholarship or by the Nuns of the institution concerned. On these matters what is available is only the version of petitioner. Mere fact that petitioner has chosen to give contra evidence by itself is not sufficient to hold that such evidence has to be accepted. Question is whether that evidence is to be accepted. W.P(C) No.24762 of 2010 -: 4 :- Executing court in the circumstances found that it is not a case where petitioner does not have means and that he has not adduced contra evidence which is sufficient to dispel evidence given by representative of respondent. I do not find reason to interfere with the finding of the learned Munsiff regarding means of petitioner exercising the supervisory power under Article 227 of the Constitution. 7. Then the next question is whether refusal or negligence to pay the amount is required to be proved under clause (b) of the proviso to Sec.51 of the Code. Once it is shown that petitioner has sufficient means and it is also shown that he has not paid the amount it is possible to infer that he has refused or neglected to pay the amount. I must also bear in mind that the amount due is around Rs.10,000/- and the suit was filed in the year 2002. In spite of a lapse of eight years petitioner was not able to discharge the liability. In such a situation also I do not think that interference is required with the order under challenge. However having regard to the difficulty expressed by the petitioner to raise the amount in lump I am inclined to grant three months’ time to the petitioner to discharge the liability. Resultantly, this petition is dismissed. But petitioner is granted three months’ time from 01.12.2010 to discharge the W.P(C) No.24762 of 2010 -: 5 :- entire liability due under the decree and during the said period the warrant issued to the petitioner shall remain in abeyance but subject to the following conditions. (i) Petitioner shall deposit in the executing court for payment to the respondent not less than Rs.2,500/- per month on or before 5th of each month beginning from 01.12.2010 provided that by the last installment the entire debt due under the decree is discharged. (ii) In case of default in payment of any installment or the entire decree debt is not discharged within the period granted as stated above, it will be open to the executing court to proceed against petitioner personally without further enquiry as to means of petitioner. THOMAS P. JOSEPH, JUDGE. vsv