IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 OP(C).No. 3682 of 2011(O) ---------------------------------------- (EP.NO.146/2009 IN O.S.NO.34/2005 OF SUB COURT, PALA) ....... PETITIONER: --------------------- PIOUS AUGUSTINE,S/O.AUGUSTINE, PANJIKUNNEL(THAYYIL),ALANAD KARA,BHARANANGANAM VILLAGE,MEENACHIL TALUK,KOTTAYAM DISTRICT. BY ADV. SRI.M.P.MADHAVANKUTTY RESPONDENT(S): ---------------------------- THOMAS,S/O.THOMAS,THULUVANICKAL HOUSE, PAYAPPAR KARA,LALAM VILLAGE,MEENACHIL TALUK, KOTTAYAM DISTRICT-686 589. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.3682/2011 O APPENDIX PETITIONER'S EXHIBITS: EXT-P1: TRUE COPY OF THE PLAINT IN O.S.NO.34/2005 BEFORE THE SUBORDINATE JUDGE'S COURT,PALA. EXT-P2: TRUE COPY OF THE PETITION IN E.P.NO.146/2009 IN O.S.NO. 34/2005 BEFORE THE SUBORDINATE JUDGE'S COURT,PALA. EXT-P3: TRUE COPY OF THE APPLICATION IN E.P.NO.19.2007 IN O.S.NO.34/2005 BEFORE THE SUBORDINATE JUDGE'S COURT,PALA. EXT-P4: TRUE COPY OF OBJECTION FILED BY THE PETITIONER IN E.P.NO. 19/2007. EXT-P5: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER IN E.P.NO.146/2009 IN O.S.NO.34/2005 BEFORE THE SUBORDINATE JUDGE'S COURT,PALA. EXT-P6: TRUE COPY OF THE ORDER DATED 39.09.201 IN E.P.NO.146/2009 IN O.S.34/2005 BEFORE THE SUBORDINATE JUDGE'S COURT,PALA. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3682 of 2011 --------------------------------------- Dated this 15th day of November, 2011 JUDGMENT Petitioner, facing warrant of arrest on a finding regarding means as per Ext.P6, order has challenged the said order. Respondent obtained a decree for recovery of money from petitioner and filed E.P.No.146 of 2009 seeking personal execution. Petitioner contended that he has no means and that he is depending on his wife for livelihood. Respondent gave evidence as PW1 and stated that petitioner has 1.84 acres in Theekoi Village. Respondent also examined the wife of petitioner as PW2 who candidly admitted that she is a house-wife having no income. Executing court found that version of petitioner aged 40 years that he is dependent on PW2 for livelihood is patently incorrect, he has 1.84 acres of land and hence must be presumed to have sufficient means to pay the decree amount. 2. Learned counsel has argued that the finding is not correct. But, having regard to the above circumstances and as petitioner has not mounted the witness to give contra evidence, I am unable to accept the contention. O.P(C).No.3682 of 2011 -: 2 :- 3. Having regard to the circumstances stated by learned counsel I am inclined to give some time to the petitioner so that petitioner can request the learned Sub Judge for installment facility but subject to condition. Resultantly this original petition is disposed of as follows: (i) The challenge to Ext.P6, order is rejected. (ii) Petitioner is permitted to request the learned Sub Judge, Pala to allow him pay the amount in installments. If any such request is made learned Sub Judge shall, after hearing the counsel for respondent also, pass appropriate order in the matter as per law. (iii) To facilitate such request, it is directed that warrant of arrest issued to the petitioner will stand in abeyance for a period of one month from this day subject to the condition that petitioner pays/deposits in the executing court for payment to the respondent `.50,000/- (Rupees Fifty Thousand Only) within two (2) weeks from this day. (iv) In case the said condition is not complied, it will be open to the respondent to proceed with personal execution pursuant to Ext.P6, order. Sd/- (THOMAS P. JOSEPH, JUDGE) Sbna/-