IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 WP(C).No. 29806 of 2008(W) --------------------------------------- AGAINST THE ORDER DATED / / IN EP 100/06 IN OS.48/2005 of M.C.,PARAPPANANGADI .................... PETITIONER: ------------------ T.C.SANKARAN, S/O.CHATHAPPAN, THOTTUPPURATH HOUSE, NADAKAVU AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.P.V.KUNHIKRISHNAN RESPONDENTS: ---------------------- 1. THE SOUTH MALABAR GRAMIN BANK, REPRESENTED BY ITS MANGER, CHELAMBRA BRANCH. 2. SMT.ANITHA KUMARI, W/O.LATE K.P.PRATHAPAN HOUSE NO.H/53/B CALICUT UNIVERSITY QUARTERS, THENHIPALAM AMSOM DESOM, KOZHIKODE TALUK. 3. K.V.ARUN, S/O.LATE K.P.PRATHAPAN, AGED 20 YEARS, HOUSE NO.H/53/B CALICUT UNIVERSITY QUARTERS, THENHIPALAM AMSOM DESOM, KOZHIKODE TALUK. 4. K.V.KIRAN, S/O.LATE K.P.PRATHAPAN, AGED 15 YEARS (MINOR),HOUSE NO.H/53/B CALICUT UNIVERSITY QUARTERS, THENHIPALAM AMSOM DESOM, KOZHIKODE TALUK, (REPRESENTED BY GUARDIAN MOTHER, THE 2ND RESPONDENT). SMT.S.KARTHIKA, SC, SMG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J ===================== W.P.(C) No.29806 OF 2008 ===================== Dated this the 14th day of October 2008 JUDGMENT This writ petition is filed against the order of the Munsiff's Court, Parappanangadi in E.P.No.100/2006 in O.S.No.48 of 2005 whereby the warrant of arrest has been ordered against the writ petitioner. The execution petition is one for realisation of about Rs.60,000/- and the writ petitioner is an employee having a total remuneration of Rs.9,218/- and there are large number of deductions in the salary and his carry home salary is not adequate and therefore he has put forward the plea of no means. The court below accepting the affidavit of the decree holder and on perusal of the documents held that there is sufficient means. A person who is having a salary of Rs.9,218/- cannot be permitted to walk away after undertaking to discharge the liability on the ground that he has to pay other debts. Therefore I do not propose to interfere with the decision rendered by the learned Munsiff. But, at the same time, the real beneficiary, viz., the principal debtor is said to be having sufficient means to pay the amount and the bank is not proceeding against the principal debtor for realisation of the amount. I am conscious of WP(C)29806/2008 -:2:- the fact that the liability of a surety is co-extensive with that of a principal debtor and one cannot dictate to the decree holder to proceed against the principal debtor. But, at the same time, the principles of equity, justice and good conscience always warrant the decree holder to proceed against the person who had enjoyed the benefits of the debt and therefore I feel there must be some steps taken by the bank against the principal debtor as well. Considering the nature of the contentions, I feel that the present writ petitioner can be permitted to pay the decree amount in 10 equal monthly instalments and the first instalment is to commence on 5.12.2008. If there is default of the payment of the first instalment and thereafter of any two consecutive instalments, the bank will be at liberty to proceed against the writ petitioner for realisation of the entire amount. At the same time, I also remind the bank to proceed against the principal debtor so that hardship caused to the writ petitioner can be reduced. Writ petition is disposed of as above. M.N.KRISHNAN, JUDGE Cdp/-