IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).NO. 18546 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN E.P 118/2008 IN OS.506/1995 OF ADDL.M.C.,KOTTAYAM .................... PETITIONER(S): ----------------------- KUNJOONJAPPAN,AGED 84 YEARS, S/O.KUTTAPPAI, KUMARATHUSSERIL HOUSE, THEKKUMBHAGAM, WARD VIII,KUMARAKAM VILLAGE, KOTAYAM , PIN 686 001. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): ------------------------- JOSEPH ABRAHAM, AGED 60 YEARS, S/O.ABRAHAM, KALAPPURAYILAYA, PARAPPURATHU HOUSE, SOUTH CHENGALAM,CHENGALAM VILLAGE,KOTTAYAM PIN 686 001. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.18546 of 2010 ==================================== Dated this the 16th day of June, 2010 J U D G M E N T Judgment debtor in E.P. No.118 of 2008 in O.S. No.506 of 1995 of the court of learned Additional Munsiff, Kottayam is the petitioner before me. He is aged about 84 years and faces warrant of arrest on the finding that he has neglected or refused to pay the amount due under the decree notwithstanding that he has sufficient means. It is contended by learned counsel that finding entered by the learned Munsiff is erroneous in that there is no evidence to show that petitioner has sufficient means. 2. I have gone through the order under challenge. Respondent has given evidence as DHW1 and stated about means of petitioner. Even in the counter statement (Ext.P3) filed by petitioner it is stated that himself and wife have 44 cents of land and a house and another 1.75 acres of paddy field but according to him his children are in possession and enjoyment of those properties. It is true that petitioner has given evidence as R.W.1 in that line but executing court was not impressed by that evidence and found in favour of his means. It is admitted by petitioner that he has landed properties. Hence he cannot justifiably contend as a W.P(C) No.18546 of 2010 -: 2 :- reason for non-payment of the amount due under the decree that properties are in the possession and enjoyment of his children and they are taking income from the said properties. Executing court has rightly rejected the evidence of petitioner and issued warrant of arrest. I find no reason to interfere. 3. Learned counsel requested that petitioner may be permitted to pay the amount due under the decree in installments. According to the learned counsel some amount has already been paid to the respondent. Having regard to the fact that petitioner is aged 84 years I am inclined to show some indulgence to him but he has to pay the amount due under the decree. Resultantly Writ Petition is disposed of in the following lines: (i) Warrant of arrest issued against the petitioner shall stand in abeyance for a period of one month from this day on condition that petitioner deposited in the executing court Rs.5,000/- (Rupees Five thousand only) for payment to respondent within three weeks from this day. (ii) It will be open to petitioner to request the executing court for installment facility and in case such a request is made executing court shall consider the said request and pass appropriate W.P(C) No.18546 of 2010 -: 3 :- orders after hearing respondent also and taking into account the fact that petitioner is aged about 84 years. (iii) In case condition regarding deposit is not complied with it will be open to the executing court to proceed with personal execution against the petitioner notwithstanding the period of one month stated above. THOMAS P. JOSEPH, JUDGE. vsv