IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 17TH AUGUST 2011 / 26TH SRAVANA 1933 CRP.No. 370 of 2011() --------------------- EP NO.110/2009 IN OS.102/2008 of SUB COURT, TIRUR .................... REVN. PETITIONER(S): JUDGMENT DEBTOR ------------------------------------ C.HAMZA, S/O. CHONARI MOIDEENKUTTY, CHONARI HOUSE, MUNNIYOOR P.O., CHEMMAD, MALAPPURAM DISTRICT. BY ADV. SRI.M.P.MOHAMMED ASLAM RESPONDENT(S): DECREE HOLDER ---------------------------- P.K.SAIDALAVI, S/O. MAMMI HAJI, PARAMMAL KUDUKKENGAL HOUSE, PONMUNDAM, EDARIKODE VIA., TIRUR TALUK, MALAPPURAM DISTRICT-676 501. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 17/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.370 of 2011 -------------------------------------- Dated this the 17th day of August, 2011. ORDER The judgment debtor in E.P.No.110 of 2009 in O.S.No.102 of 2008 of the court of learned Sub Judge, Tirur challenges the order dated 18.06.2011 issuing warrant of arrest to the petitioner on a finding that in spite of having means he has refused to pay the amount due under the decree. Petitioner contends that the finding is erroneous since there is no evidence that in spite of having means he has refused to pay the amount. Learned counsel contends that for mere inability of petitioner to pay the amount due under the decree he cannot be detained in civil prison and that there is no evidence of willful failure of petitioner to pay the amount in spite of having sufficient means. 2. Respondent gave evidence as PW1 and proved Ext.A1. It would appear that the property allegedly belonging to the petitioner was attached before judgment as per order on I.A.No.890 of 2008 (Ext.A1). That was countered by petitioner producing Ext.B1, encumbrance certificate to show that even before the suit, the said property was sold. Assuming that Ext.A1 cannot be taken into account in view of Ext.B1 to find means of petitioner, respondent has a case that petitioner is engaged in real estate business and earning `30,000/- per month. To that evidence there is no contra version, petitioner refusing to mount the witness box. CRP No.370/2011 2 3. It is true that the mere inability of petitioner to pay the amount due under the decree cannot make him liable to detention in the civil prison. But, the question whether there was willful failure or default on his part is a matter to be decided on the factual circumstances. Evidence of respondent is not rebutted by petitioner properly. Petitioner is aged 47 years and has no case of any infirmity which disables him from earning. Evidence of respondent as PW1 that petitioner is engaged in real estate business has to be viewed in that backdrop. There was no good reason for the executing court to disbelieve the evidence before it. Nor do I find reason. 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 about means it is for the judgment debtor to rebut such evidence. In that view of the matter, challenge to the impugned order cannot stand. 4. However having regard to the circumstances stated by learned counsel I am inclined to permit petitioner seek permission of the executing court for payment of the amount in installments. To facilitate that, warrant of arrest issued to the petitioner will stand in abeyance for a period of fortyfive (45) days from this day subject to condition. CRP No.370/2011 3 Resultantly this civil revision is dismissed. But, it is directed that warrant of arrest issued to the petitioner will stand in abeyance for a period of fortyfive (45) days from this day subject to the condition that petitioner shall deposit in the executing court for payment to the respondent `15,000/- (Rupees Fifteen thousand only) within one month from this day. In case the said condition is not complied, it is open to the executing court to proceed with the execution pursuant to the finding entered in the impugned order and without any further enquiry regarding means of petitioner/judgment debtor. Petitioner can request the executing court to permit him pay the decree amount in installments and if any such request is made, the executing court shall decide on that request after hearing counsel for respondent also. I.A.No.1916 of 2011 will stand dismissed. THOMAS P.JOSEPH, Judge. cks