IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 9TH APRIL 2008 / 20TH CHAITHRA 1930 WP(C).No. 12150 of 2008(U) --------------------------------------- OS.45/2003 OF MUNSIFF COURT, MAVELIKKARA .................... PETITIONERS: --------------------- 1. MATHEW VARGHESE, S/O. VARGHESE, NADVALLIL VEEDU, KUNNAM, MAVELIKKARA. 2. SAM VARGHESE, S/O. VARGHESE, NADVALLIL VEEDU, KUNNAM, MAVELIKKARA. BY ADV. SRI.K.R.VINOD, ADV. SRI.M.S.LETHA. RESPONDENT: ---------------------- BALAKRISHNA CHITTY FUND (REGD), NEDUVARAMCODE, REPRESENTED BY ITS MANAGING PARTNER, MR.V.K.BALAKRISHNAN, BALAKRISHNA BHAVAN, ALA THEKKUM MURI, ALA VILLAGE. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/04/2008, ALONG WITH W.P.(C). NO. 12239/2008 AND CONNECTED CASES,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C)Nos.12150,12239, 12248 & 12272 OF 2008 ===================== Dated this the 9th day of April 2008 JUDGMENT These writ petitions are preferred against the order passed by the Munsiff's Court, Mavelikkara whereby the court has ordered arrest of judgment debtors 1 and 3. In different execution petitions, i.e. E.P.110/2004, E.P.No.109/2007, E.P.No.108 of 2007 and E.P.No.107 of 2007. In all these cases, the court below found that judgment debtors 1 and 3 are having sufficient means to pay and that they are intentionally evading payment and therefore directed issuance of warrant. Learned counsel would contend that the property which belonged to defendants 1 and 3 are already disposed of and therefore they are not having any means. The learned counsel submits that a reasonable time may be granted to wipe off the liability in instalments and he therefore prays for indulgence. 2. The learned Munsiff has considered the matter very elaborately. There are findings to the effect that the first judgment debtor is having 24 cents of land and even he has admitted that he was having about 28.5 acres of land in Tamil Nadu. In the decision reported in Kuppuswamy v. Wp(C)12150/08 & con. cases -:2:- P.G.Menon(1992(2) KLT 203) the court held that when materials are available to show that there are realisable assets with the judgment debtor one can hold that there is sufficient means. But the court also held that it is rebuttable presumption and that if the judgment debtor is able to establish that he is not in a position to pay off the liability by selling the properties his burden is discharged. But unfortunately the evidence on this behalf has not been tendered. Therefore I cannot find fault with the court below in arriving at such a decision. Therefore I confirm the finding on means. Learned counsel in all fairness would submit that if some time is given and as his financial position has been so weak, he will be able to do it by making some arrangements which requires some time. I feel a reasonable instalment facility can be granted to the petitioners herein for discharging the decree debt. Therefore I dispose of the writ petition as follows: (1) The finding on means is confirmed.(2) Petitioners are permitted to pay the balance decree amount due in 8 equal monthly instalments in all these cases commencing from 22.5.2008. (3) If there is a default of the first instalment and thereafter of any two consecutive instalments the benefit granted to the petitioners shall stand cancelled and the decree holder will be permitted to request the court to execute the warrant of arrest.(4) Till a default is made, the warrant of Wp(C)12150/08 & con. cases -:3:- arrest now ordered by the court shall not be executed. M.N.KRISHNAN, JUDGE Cdp/-