IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 14TH JULY 2010 / 23RD ASHADHA 1932 WP(C).No. 7846 of 2010(O) ------------------------- AGAINST THE ORDER DATED 05/02/2010 IN EP.223/2008 IN OS.203/2006 of PRL.MUNSIFF COURT, CHERTHALA .................... PETITIONER/JUDGEMENT DEBTORS: -------------------------------- 1. PARAMESWARAN,S/O.PADMANABHAN,MAYA NIVAS, WARD NO.XI,PATTANAKKAD MURI,PATTANAKKAD VILLAGE. 2. SUGUNAN,S/O.PADMANABHAN,SUNITHA BHAVAN, WARD NO.XI,PATTANAKKAD MURI,PATTANAKKAD VILLAGE, CHERTHALA. BY ADV. SRI.P.SANJAY SMT.A.PARVATHI MENON SRI.BIJU MEENATTOOR RESPONDENT/DECREE HOLDER: ---------------------------- P.P.SADANANDAN,S/O.PADMANABHAN, SUNITHA BHAVAN,WARD NO.XI,PATTANAKKAD MURI, PATTANAKKAD VILLAGE(P.O),CHERTHALA. ADV. SRI.T.JAYAKRISHNAN FOR R1 SRI.A.V.CHARLES FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7846 of 2010(O) APPENDIX PETITIONERS' EXHIBITS: EXHIBIT P1 : PROOF AFFIDAVIT FILED BY THE 1st PETITIONER EXHIBIT P2 : PROOF AFFIDAVIT FILED BY THE 2nd PETITIONER EXHIBIT P3 : ORDER IN E.P.NO.223 OF 2008 IN O.S.NO.243 OF 2006 DTD.05.02.2010 RESPONDENTS' EXHIBITS: NIL True Copy P. A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No. 7846 of 2010 --------------------------------------- Dated this 14th day of July, 2010 JUDGMENT This writ petition is at the instance of judgment debtors in E.P.No.223 of 2008 in O.S.No.203 of 2006 of the court of learned Principal Munsiff, Cherthala. Executing court found from the oral and documentary evidence that petitioners have sufficient means to discharge the decree debt but they refused to pay the amount. Accordingly warrant of arrest was issued to the petitioners. Learned counsel for petitioners contended that there is no acceptable evidence to prove means. According to learned counsel for respondent petitioner have sufficient means. 2. Respondent in his evidence as PW1 stated about the income which according to him, petitioners get bimonthly or quarterly. According to PW1, petitioners owned landed properties and are getting income from the said properties. Petitioner No.1 is examined as RW1 and proved Exts.B1 and B2 to show that a portion of the property belonging to him was sold in execution of decree in O.S.No.368 of 2003 of the court of learned Munsiff, Cherthala and petitioners are not getting any income from the property as claimed by the respondent. W.P.C.No.7846 of 2010 : 2 : 3. Though it is the version of RW1 that the entire property has been sold in execution of the decree in O.S.No.368 of 2003 and for other family necessities executing court has observed from Ext.B2 that the entire property of petitioners is not sold. It is after consideration of the evidence on both sides that executing court found in favour of means of petitioners. 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 regarding income is given it is for the judgment debtor to controvert it. Executing court found that petitioners are having sufficient means. Exercise of power under Article 227 of the Constitution is not warranted on the facts, circumstances and evidence. Having regard to the circumstances I do not find reason to interfere. 4. Learned counsel for petitioners requested that petitioners may be permitted to pay the balance amount due in 12 installments. It is also submitted that petitioners have deposited Rs.10,000/- in the executing court as ordered by this court on 10-03-2010. I have heard learned counsel for respondent also on the request of petitioners for installment facility. Having regard to the circumstances stated by learned W.P.C.No.7846 of 2010 : 3 : counsel for petitioners I am inclined to permit petitioners to pay the balance amount due under the decree in ten (10) equal monthly installments. Resultantly this writ petition is disposed of in the following lines: 1. Petitioners are permitted to deposit in the executing court for payment to the respondent the balance amount due under the decree in 10 (ten) equal monthly installments beginning from 02-08-2010. The amount shall be deposited in the executing court before 5th of each month. 2. In case of default in deposit of any two installments, it is made clear that notwithstanding the time granted hereby it will be open to the respondent to proceed with personal execution against petitioners pursuant to Ext.P3, order without further enquiry regarding their means. 3. The warrant of arrest issued to the petitioners shall remain in abeyance for the said period of two months or until petitioners committed default as stated in clause (2) above, whichever is earlier. 4. Th amount already deposited or to be deposited by petitioners in the executing court can be withdrawn by the respondent. (THOMAS P JOSEPH, JUDGE) Sbna/-