IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 17TH SEPTEMBER 2010 / 26TH BHADRA 1932 WP(C).No. 28715 of 2010(O) -------------------------- OS.2201/2007 of III ADDL. MUNSIFF COURT.,THRISSUR .................... PETITIONER: --------------- P.S.PUSHPANGADAN, PULIKKATHARA HOUSE, S/O.SANKARAN, AYYANTHOLE VILLAGE, PUTHURKARA DESOM, THRISSUR TALUK. BY ADV. SRI.V.M.SYAM KUMAR SRI.V.N.HARIDAS RESPONDENT: --------------- P.K.UNNIKRISHNAN, S/O.KRISHNAN, PULIKKAPARAMBIL HOUSE, KANIMANGALAM VILLAGE, THRISSUR TALUK-680027 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.28715 of 2010 --------------------------------------- Dated this 17th day of September, 2010 JUDGMENT This writ petition is filed by the judgment debtor in E.P.No.1717 of 2008 in O.S.No.2201 of 2007 of the court of learned Additional Munsiff-III, Thrissur. Petitioner suffered a decree for payment of money. Respondent-decree holder filed execution petition for realisation of Rs.38,899/- with future interest and cost. Respondent wanted personal execution against petitioner and gave evidence as PW1 regarding means of petitioner. Respondent stated as PW1 that petitioner is working as an advocate clerk earning Rs.15,000/- per month and that shortly before passing of the decree, petitioner sold his property as per Ext.A1, sale deed but he has not discharged the liability under the decree. Respondent produced Ext.A2 to show that petitioner owns two telephones in his name. Petitioner did not adduce any evidence. Executing court, acting upon the evidence found that petitioner has means and ordered warrant of arrest. It is contended by learned counsel that the finding is not correct. No opportunity was given to the petitioner to adduce evidence in spite of Ext.P5, application requesting the executing court to W.P.C.No.28715 of 2010 : 2 : reopen the case for evidence. 2. I have gone through the orders under challenge. Respondent was examined as PW1 on 12-08-2010. That day, petitioner filed Ext.P4, application seeking permission to pay the decree amount @ 1,000/- per month. Of course he stated that his son had agreed to help him discharge the liability under the decree. That application did not find favour with the executing court. Ext.P5, application was preferred on 18-08-2010 and that was dismissed on the same day as per Ext.P6, order. That order was followed by Ext.P7, order finding means of petitioner and issuing warrant of arrest. In Ext.P7 the executing court has stated that petitioner was granted sufficient opportunity to the petitioner to adduce evidence but it was represented before the executing court on behalf of petitioner that he has no evidence to be let in. It is in the above circumstances that executing court acted on the evidence of respondent and found that petitioner has sufficient means. Now the uncontroverted evidence is that petitioner is working as an advocate clerk and earning. Ext.A1 shows that immediately before passing the decree he disposed off some property belonging to him. Ext.A2 shows that he is a W.P.C.No.28715 of 2010 : 3 : subscriber of two telephones. These circumstances are sufficient to indicate that petitioner has sufficient means. In Kuppuswami Vs. P G Menon (1992(2) KLT 203) it is held that the initial burden of proving means of judgment debtor lies on the decree holder but it is not as if the latter has to give evidence as to all details of source of income of judgment debtor. If some evidence indicating that judgment debtor has income is given, it is for the judgment debtor to controvert it. Judgment debtor has not controverted the evidence adduced against him. Hence I do not find any infirmity in the order of executing court issuing warrant of arrest to the petitioner on the finding that he has means. 3. Learned counsel has made a request for grant of time to pay the decree amount. There is also a request for payment of the amount in instalments. Question whether petitioner should be given instalment facility is a matter to be decided by the executing court after hearing counsel for respondent also. Hence I am not inclined to provide instalment facility in this proceeding. Having regard to the facts and circumstances of the case petitioner is granted three months' time to discharge the liability under the decree, subject of course to conditions. W.P.C.No.28715 of 2010 : 4 : Resultantly this writ petition is dismissed but petitioner is granted three months' time to pay the amount due under the decree subject to the following conditions: (i) Petitioner shall deposit in the executing court for payment to respondent Rs.10,000/- (Rupees Ten Thousand Only) within one month from this day. (ii) Entire liability shall be discharged within three (3) months from this day (unless in the meantime executing court permits petitioner to pay the amount in instalments after hearing counsel for respondent also). (iii) In case the deposit aforesaid is not made within the prescribed time, or the entire amount is not paid within the time granted hereby (unless in the meantime instalment facility is granted by the executing court) it will be open to the executing court to proceed against petitioner pursuant to Ext.P7, order without further enquiry as to the means of petitioner. (iv) The warrant of arrest issued against the petitioner shall remain in abeyance during the said period of three months or till default as aforesaid is committed whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-