IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 30TH SEPTEMBER 2010 / 8TH ASWINA 1932 WP(C).No. 37071 of 2009(O) ----------------------------------------- OS.192/2005 of MUNSIFF COURT,HARIPAD .................... PETITIONER(S): ---------------------- KRISHNA KUMAR, THERUVIL THEKKETHIL, VALIYAKUZHI MURI, CHEPPAD VILLAGE. BY ADV. SRI.K.SUBASH CHANDRA BOSE RESPONDENT(S): ------------------------- K.T.THOMAS, KANNATT ZOO VILLA, PERISSERI MURI, PULIYOOR VILLAGE. BY ADVS. SRI.V.MADHUSUDHANAN, SRI.V.VENUGOPAL, SRI.T.ISSAC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.37071/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EXECUTION PETITION FILED BY THE RESPONDENT IN OS.192/2005 BEFORE THE HARIPPAD MUNSIFF COURT. P2:- COPY OF THE OBJECTION FILED BY THE PETITIONER TO THE EXECUTION PETITION. P3:- COPY OF THE AFFIDAVIT PRAYING TO ISSUE WARRANT AGAINST THE PETITIONER. P4:- COPY OF THE OBJECTION FILED AGAINST THE AFFIDAVIT FOR ISSUING WARRANT. P5:- COPY OF THE ORDER IN EP.58/2008 IN OS. 192/2005 DTD. 18.11.2009 OF THE MUNSIFF COURT HARIPPAD. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 37071 OF 2008 ------------------------------- DATED THIS THE 30TH DAY OF SEPTEMBER, 2010 JUDGMENT Judgment debtor in E.P.No.58/08 in O.S.No.192/025 on the file of the Munsiff's Court, Haripad is the petitioner. Decree holder is the respondent herein. The decree provides for realisation of the decree amount of Rs.95,200/- with interest at the rate of 12%. The statement of accounts filed by the decree holder in the E.P. shows that an amount of Rs.1,40,587/- is to be realised from the judgment debtor. 2. The petitioner filed an objection contending that he has no sufficient means to pay the decree amount. The execution court conducted an enquiry as to whether judgment debtor has sufficient means to pay the decree debt. Both sides adduced evidence. Pws.1 and 2 were examined on the side of the decree holder. Judgment debtor was examined as DW-1. Exts.B1 and B2 were marked on his side. The court below, on an appreciation of the evidence on -2- WP(C).No.37071/2009 record, held that initial burden of the decree holder to prove that the judgment debtor is having sufficient means to pay the decree amount is discharged by examination of Pws.1 and 2. The execution court further examined the question as to whether the judgment debtor has sufficient means to pay the decree debt. On an evaluation of the evidence adduced by both sides, the court below held that the decree holder has succeeded in proving that the judgment debtor has sufficient means to pay the decree debt. Therefore, the court held that the judgment debtor is having sufficient means to pay the decree debt and he is wilfully defaulted to pay the same. On the basis of the said finding the court issued warrant of arrest against the judgment debtor. 3. The findings entered by the execution court are based on the oral and documentary evidence adduced by the parties. The conclusions arrived at are on the basis of evidence. In that view of the matter, this Court finds no valid grounds to interfere with Ext.P5 order. Therefore Ext.P5 order stands confirmed. 4. The learned counsel for the petitioner/judgment debtor -3- WP(C).No.37071/2009 submitted that the petitioner is unable to pay the decree amount in lump sum and therefore requested this Court to permit him to pay the decree amount in instalments. In the interest of justice, this Court is of the view that the request of the petitioner can be considered on conditions. Ext.P5 shall be kept in abeyance, if the petitioner pays an amount of Rs.50,000/- (Rupees fifty thousand) towards decree debt within two months from today and shall pay the balance amount in five equal monthly instalments. The first instalment shall be paid on or before the 5th January, 2011 and the subsequent instalments shall be paid on or before the 5th of every succeeding months. If the petitioner commits default in any of the instalment as directed above, the execution court is at liberty to realise the decree amount by proceeding Ext.P5 order. Writ petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.