IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 OP(C).No. 979 of 2010(O) ------------------------ AGAINST THE ORDER IN EP.43/2010 IN OS.101/2003 of MUNSIFF COURT, OTTAPPALAM .................... PETITIONER ------------------------------ K.SANKARANARAYANAN, S/O.LATE NETTATHODIKUNNATH NARAYANAN, THOTTAKKARA DESOM, KANNIYAMPURAM AMSOM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADV. SRI.P.JAYARAM RESPONDENT: --------------- PREMAVALSALA, W/O.PARAKULATHIL AYYAPPAN, KANNIYAMPURAM AMSOM, P.O.THOTTAKKARA - 679 102 OTTAPALAM TALUK, PALAKKAD DISTRICT. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.979 of 2010 --------------------------------------- Dated this 03rd day of December, 2010 JUDGMENT Judgment debtor in E.P.No.43 of 2010 in O.S.No.101 of 2003 of the court of learned Munsiff, Ottappalam is the petitioner before me. Respondent obtained a decree against petitioner on 31-05-2004 for restoration of possession of plaint schedule property and for recovery of damages for use and occupation. Petitioner says that respondent was put in possession of the property on 17-02-2005. Respondent proceeded with execution for recovery of damages by personal execution against petitioner. He stated that petitioner owns an Autorikshaw, is a driver by occupation and altogether is earning `.750/- per day on that count. He has landed properties. He was in the Gulf from 1994 till 1997 and has bank balance. It is also the case of respondent that petitioner had sold his immovable properties recently. Petitioner is working as driver of Adv. Nandakumar. Petitioner gave contra evidence and denied the allegation and claimed that he is the caretaker of properties of Adv. Nandakumar and stated that he accompanied Adv.Nandakumar to the court. In cross examination he was asked whether he was ready to file an O.P(C).No.979 of 2010 : 2 : affidavit that he has no licence (as driver). His first reaction was a refusal. Learned counsel contends that petitioner had expressed his willingness to file affidavit later but, fact remained that no such affidavit was filed. From these circumstances executing court has found that petitioner has sufficient means. It is contended by learned counsel that the finding is not correct and that petitioner has no means. 2. In Kuppuswami Vs. P G Menon (1992(2) KLT 203) it is held that 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. In the present case assuming that respondent was not able to prove that petitioner has bank balance or has landed property, he has given evidence that petitioner is earning as a driver. Though petitioner denied that he is a driver of Adv.Nandakumar, he admitted that he is working as caretaker of properties of the said Adv.Nandakumar and is accompanying the advocate to the court. Executing court observed that if he were merely a caretaker of the properties there was no need to accompany the advocate to the court every now thus, taken along with the initial refusal of petitioner to file an affidavit that he has no license eloquently O.P(C).No.979 of 2010 : 3 : indicate that he was working as a driver. Executing court in the circumstances accepted evidence of petitioner. Having regard to the facts and circumstances of the case I am not inclined to think that finding entered by the executing court is perverse or without jurisdiction so that this court is required to interfere under Article 227 of the Constitution. I do not find reason to interfere. 3. Learned counsel stated that this court having declined to accept the contention of petitioner, sufficient time may be given to the petitioner to pay the amount in installments. Learned counsel requested that petitioner may be permitted to pay the amount at the rate of `.1500/- per month. However, in the absence of respondent before me, I am not inclined to accept that request in toto. Considering the circumstances stated by learned counsel, I am inclined to give petitioner four months’ time to pay the amount. Resultantly this petition is dismissed but, petitioner is granted four months’ time from 15-12-2010 to pay the amount due under the decree and the warrant of arrest issued to the petitioner shall stand in abeyance during the said period subject to the following conditions: (i) Petitioner shall deposit in the executing court for payment to the respondent on or before 15th of every month beginning from 15- O.P(C).No.979 of 2010 : 4 : 12-2010 (in case that day is a holiday deposit shall be on the next working day) at the rate of `.2500/- (Rupees Two Thousand Five Hundred Only) provided that by the last installment the entire amount due is paid (unless on the request made by petitioner in the executing court that court after hearing respondent also decided to extent the time for payment). (ii) In case of default in payment of any installment or, failure to pay the amount within the time granted hereby (unless the executing court extended time as aforesaid) it will be open to the respondent to proceed with personal execution against petitioner pursuant to the impugned order and without any further enquiry regarding means of petitioner. (THOMAS P JOSEPH, JUDGE) Sbna/-