IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 20711 of 2010(O) -------------------------- AGAINST THE ORDER DATED 16/06/2010 IN EP 452/08 IN OS.412/2006 of MUNSIFF COURT, CHALAKUDY .................... PETITIONER(S): --------------- RAJU, S/O.SULTHAN, KALAKKATTUKARAN HOUSE, MUKUNDAPURAM TALUK, ELINJIPRA VILLAGE, KENS GARDEN, SITHARA NAGAR DESOM, CHALAKUDY-VIA, THRISSUR DISTRICT. BY ADV. SRI.K.K.DHEERENDRAKRISHNAN SRI.M.N.MANOJ RESPONDENT(S): --------------- 1. THOMAS, S/O.JOSEPH, IRIMBAN HOUSE, MUKUNDAPURAM TALUK, KIZHAKKE CHALAKUDY VILLAGE, KIZHAKKE CHALAKUDY DESOM, CHALAKUDY-VIA, THRISSUR DISTRICT, PIN CODE 680 307. 2. VALSA, W/O.THOMAS,IRIMBAN HOUSE, MUKUNDAPURAM TALUK, KIZHAKKE CHALAKUDY VILLAGE, KIZHAKKE CHALAKUDY DESOM, CHALAKUDY-VIA, THRISSUR DISTRICT, PIN CODE 680 307. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.20711 of 2010 -------------------------------------- Dated this the 2nd day of July, 2010. JUDGMENT Judgment debtor in E.P.No.452 of 2008 in O.S.No.412 of 2006 of the court of learned Munsiff, Chalakudy has approached this Court with a petition under Article 227 of the Constitution to set aside Ext.P8, order issuing warrant to him on a finding that inspite of having means he has neglected and refused to pay the amount due under the decree. Learned counsel for petitioner contends that evidence let in by the respondent is not sufficient to hold that petitioner presently has got the means to pay off amount due under the decree. Reliance is placed on the decisions in Jolly George Varghese v. Bank of Cochin [(1980) 2 SCC 360] and D.Viswanathan v. The Karnataka Bank Ltd. (AIR 1988 Kerala 274). 2. No doubt, before a warrant of arrest is issued it is for the decree holder to prove that judgment debtor inspite having means has neglected or refused to pay the amount due under the decree. It has been held by this Court in Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) that the initial burden of proving means of judgment debtor is on the decree holder. If some evidence regarding means is given it is then for judgment debtor to controvert the same. In Jolly George Varghese v. Bank of Cochin (supra) the Supreme Court has held that the fact that judgment debtor had income at some prior point of time is not sufficient for the executing court to issue warrant of WP(C) No.20711/2010 2 arrest against him. It is stated that executing court is to enquire into his present financial position and ability to satisfy the debt. Same is the decision in D.Viswanathan v. The Karnataka Bank Ltd. (supra) as well. There, after referring to the burden of proof on the decree holder it is stated that there is no obligation on the judgment debtor to prove that he has no means. True, respondent was not able to speak about all details of income of petitioner but, he has examined PW1, Taluk Supply Officer who has proved Exts.X1 and X2. Ext.X1 is the application for renewal of ration card submitted by petitioner to the authority concerned in the year 2001 where he has described himself as a businessman. Ext.X2 is for the same purpose in respect of the year 2007 where also petitioner is described as a businessman. Ext.X3 is the extract of ledger from the account of petitioner in the bank. It is true that the account was closed in the year 2007. Even on the showing of petitioner, he was engaged in business it is for him to show that the business was discontinued. Petitioner has not cared to enter the witness box to controvert the circumstances/evidence brought against him. In view of the decision in Kuppuswamy v. P.G.Menon I am persuaded to think that the initial burden of proving means of petitioner has been discharged by the respondent but, that has not been controverted by the petitioner. As such no interference is required with Ext.P8,order. 3. At this stage learned counsel stated that petitioner is under treatment due to cirrhosis of liver with portal hypertension since long and that he is unable to raise the amount in lump. It is requested that WP(C) No.20711/2010 3 petitioner may be given installment facility. Question whether petitioner could be allowed to pay the amount in installments is a matter which the executing court has to decide after hearing respondent as well. But in the circumstances stated I am inclined to direct the executing court to keep in abeyance the warrant of arrest issued against petitioner for a period of two months from this day subject to condition. Resultantly this Writ Petition is disposed of in the following lines: i. Warrant of arrest against the petitioner will stand in abeyance for a period of two months from this day on condition that petitioner deposited in the executing court for payment to respondent Rs.20,000/- (Rupees Twenty thousand only) within a month from this day. ii. In case the said condition is not complied it will be open to the respondent to proceed with personal execution against the petitioner pursuant to impugned order. iii. I make it clear that it is open to the petitioner to request the executing court to permit him pay the amount due under the decree in installments and if any such request is made executing court shall consider that request after hearing the respondent as well. THOMAS P.JOSEPH, Judge. cks