IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 15TH JUNE 2010 / 25TH JYAISTHA 1932 WP(C).No. 1460 of 2010(O) ------------------------- AGAINST THE ORDER IN EP 374/06 IN OS.12/2001 of PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): --------------- M.SOMASUNDARAN NAIR, S/O.MADHAVAN NAIR, RAJAM HOUSE, VADAKKAVILA VILLAGE, KADAPPAKKADA, KOLLAM. BY ADV. SRI.M.R.SARIN RESPONDENT(S): --------------- 1. SATYANANDAN, SUVARNALAYAM, ASRAMAM, KOLLAM. 2. SREEKUMAR,S/O.DAMODHARAN PILLAI, PADMA BHAVANAM, KOYIVILA WARD, THAVALAKKARA, KARUNAGAPPALLY. 3. B.VALSALA DEVI, W/O. SREEKUMAR, PADMA BHAVANAM, KOYIVILAWARD, THAVALAKKARA, KARUNAGAPPALLY. ADV. SRI.RAJA VIJAYARAGHAVAN FOR R1 SRI.M.T.SURESHKUMAR FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.1460/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF JUDGMENT IN OS 12/2001 OF ADDL.SUB COURT, KOLLAM DATED 29.5.2001 EXT.P2 TRUE COPY OF EXECUTION PETITION BEFORE THE SUB COURT, KOLLAM EXT.P3 TRUE COPY OF THE OBJECTION FILED BY THE PETITIONER BEFORE THE SUB COURT, KOLLAM EXT.P4 TRUE COPY OF ORDER DATED 18/12/2009 IN EP 374/06 IN OS 12/2001 OF PRINCIPAL SUB COURT, KOLLAM THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.1460 of 2010 -------------------------------------- Dated this the 15th day of June, 2010. JUDGMENT This Writ Petition is in challenge of Ext.P4, order of the executing court issuing warrant against petitioner. According to the learned counsel executing court was not justified in issuing warrant of arrest in the absence of any evidence regarding means of petitioner. Learned counsel requested that petitioner may be permitted to pay the amount in installments. Learned counsel for respondent No.1/decree holder contends that it is on finding that petitioner has means that warrant of arrest was issued. Respondent No.1 however is agreeable to give reasonable time for petitioner to pay amount due under the decree. 2. It is seen from Ext.P4, order that petitioner had not preferred any objection to the notice served on him under Order 21 Rule 37 of the Code of Civil Procedure. It is also seen that executing court has acted on the proof affidavit filed by respondent No.1. Though it is not specifically stated that statements in the proof affidavit are accepted by executing court, it is with the proof affidavit detailing income of the petitioner on record that the impugned order has been passed. Hence I am inclined to presume that executing court has accepted the statements in the proof affidavit and found means of petitioner. So far as request for payment of amount due under the decree in installments is concerned, amount due under the decree is more than Rupees WP(C) No.1460/2010 2 two lakhs. Having considered difficulties of petitioner stated by the learned counsel and on hearing learned counsel for respondent No.1, I am inclined to permit petitioner pay the amount due under the decree in ten (10) equal monthly installments. Resultantly, this Writ Petition is dismissed. But petitioner is permitted to pay the amount due under the decree in ten (10) equal monthly installments beginning from 01.07.2010 onwards. It is made clear that in case amount due under the decree is not paid within the said period or, petitioner commits default in payment of any two installments, it will be open to the executing court to proceed with personal execution against petitioner pursuant to Ext.P4, order. THOMAS P.JOSEPH, Judge. cks