IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 CRP.No. 134 of 2011() --------------------- E.A.123/2009 IN E.P.22/2009 IN OS.216/2008 of SUB COURT,KOTTARAKKARA .................... REVISION PETITIONER(S): JUDGMENT DEBTOR: ------------------------------------------------------------------------- SURESH KUMAR, AGED 33 YEARS, S/O.SASIDHARAN PILLAI, KARTHIKA FROM SASI VILASOM VEEDU, MELLILA P.O., VILOOR MURI, MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADVS. SRI.V.L.SHENOY, SRI.L.JAYAWANTH. RESPONDENT(S): DECREE HOLDER: ------------------------------------------------------- ANNAMMA ALEX, AGED 47 YEARS, W/O.ALEXANDER, K.V.LAND, MELLILA P.O., VILOOR MURI, MELILA VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT, PIN-691 508. BY ADVS. SRI.V.M.KURIAN, SRI.MATHEW B. KURIAN, SRI.K.T.THOMAS. THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.134 of 2011 --------------------------------------- Dated this 31st day of August, 2011 ORDER Petitioner is the judgment debtor in E.P.No.22 of 2009 in O.S.No.216 of 2008 of the Court of learned Sub Judge, Kottarakkara. There, a compromise decree for payment of money was passed on 15.10.2008. As per the compromise decree petitioner was to pay `.13,00,000/- of which `.3,00,000/- was to be paid on or before 30.09.2008 and the balance, to be paid before 23.03.2009. According to the respondent/decree holder, petitioner paid `.3,00,000/- on 30.09.2008 and a further sum of `.3,00,000/- on 07.11.2008. There was no further payment. Hence, respondent launched execution and filed E.P.No.22 of 2009. Respondent wanted personal execution against petitioner and adduced evidence regarding means of petitioner. Petitioner gave contra evidence and denied that he has means to pay the amount. Executing court found from the evidence that petitioner has sufficient means and issued warrant of arrest. That order is under challenge. 2. Learned counsel for petitioner contends that in E.A.No.123 of 2009, prayer is only for arrest of petitioner and not C.R.P.No.134 of 2011 -: 2 :- his detention. It is also contended that finding of the executing court regarding means is not correct and is merely based on an answer given by petitioner in cross examination when examined as DW1. Learned counsel submits that though according to the respondent, petitioner owns an item of property (among those attached) it is open to the petitioner to proceed against that property and realise the amount rather than proceed against petitioner personally. 3. Learned counsel for respondent has contended that there is no bonafides in the contention raised by petitioner as revealed by the evidence of petitioner as DW1 and in the circumstance, executing court was correct in finding means of petitioner and in issuing warrant of arrest. 4. It is not disputed that three items of properties belonging to the petitioner was placed under attachment in the course of trial of which, it is said that petitioner holds two items. One item remains, according to petitioner, 1.25 cents and a two storied commercial building where petitioner is engaged in business. When examined as DW1, petitioner was asked whether that property is valued at `.15,00,000/-. He denied the suggestion. Respondent made a further suggestion that respondent is ready to pay `.2,00,000/- after setting off the C.R.P.No.134 of 2011 -: 3 :- amount payable as per E.P.No.22 of 2009 in case petitioner is willing to transfer the said 1.25 cents and building to the respondent. Petitioner was not agreeable for that also. 5. It is not as if petitioner had no means at all - he had three items of property of which two items, he had already sold during pendancy of the suit. In Kuppuswamy v. P.G. Menon (1992(2) KLT 203) it has been held that decree holder has the initial burden of proving the means of petitioner and that if some evidence of means is adduced it is for the judgment debtor to rebut such evidence. It is also stated in that decision that if the judgment debtor has some property, it is open to him to raise the amount by sale, mortgage etc. Having heard learned counsel on both sides and gone through the order under challenge I do not find reason to interfere with the finding regarding means. 6. At this stage, learned counsel requested that petitioner may be permitted to pay the amount in convenient installments. Learned counsel for respondent submits that petitioner is doing business in the building above referred and is getting substantial income per month. Having regard to the circumstances stated before me I am inclined to allow petitioner pay the entire balance amount due as per the decree in five (5) equal monthly installments beginning from 01.10.2011 onwards. C.R.P.No.134 of 2011 -: 4 :- Resultantly this civil revision is disposed of in the following lines: (i) While no interference is required with the order finding means of petitioner and issuing warrant of arrest for his detention, it is directed that petitioner is permitted to pay the amount due under the decree in five (5) equal installments beginning from 01.10.2011 onwards provided that by the last installment the entire amount due is paid. (ii) The payment/deposit in the executing court for such payment shall be made on or before the 5th of every month and in case that happens to be a holiday, payment/deposit shall be made on the next working day. (iii) In case there is default in payment of any two installment, it will be open to the executing court to proceed with execution pursuant to the finding regarding means without any further enquiry. (iv) Warrant of arrest issued to the petitioner will stand in abeyance for the said period of five (5) months or till default as aforesaid is committed, whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-