IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 9TH SEPTEMBER 2010 / 18TH BHADRA 1932 WP(C).NO. 27933 OF 2010(O) ----------------------------------------- AGAINST THE ORDER IN EP.125/2008 IN OS.44/2001 OF PRINCIPAL SUB COURT,KOLLAM .................... PETITIONER(S): ---------------------- S.SOMASUNDARAN NAIR, S/O.MADHAVAN NAIR, RAJU HOUSE, VADAKKEVILA,KADPPAKKADA KOLLAM. BY ADV. SRI.AJAYA KUMAR. G RESPONDENT(S): -------------------------- 1. SPADIKOM, S/O.JANARDHANAN, BRAHMA VILASOM, ASRAMAM, KOLLAM - 691001, 2. D.SREEKUMAR, S/O.DAMODARAN PILLAI, PADMA BHAVAN, KOIVILA WARD, THEVALAKARA, KARUNAGAPPALLY-690518 3. B.VALSALA DEVI, W/O.SREEKUMAR, REISIDING AT PADMA BHAVAN, KOILIVA WARD, THEVALAKARA, KARUNAGAPPALLY-690518 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.27933 of 2010 ==================================== Dated this the 09th day of September, 2010 J U D G M E N T Judgment debtor No.3 in E.P. No.125 of 2008 in O.S.No.44 2001 of the court of learned Sub Judge, Kollam is the petitioner before me challenging Ext.P5, order issuing warrant to the petitioner on a finding that petitioner having sufficient means has failed to pay the decree amount. It is contended that petitioner did not get opportunity to cross-examine the Power of Attorney Holder of respondent No.1. 2. Petitioner along with respondent Nos.2 and 3 suffered a decree for payment of money to respondent No.1. He filed E.P. No.125 of 2008 for recovery of the amount due under the decree which is more than Rs.1,50,000/-. Power of Attorney Holder of respondent No.1 filed proof affidavit stating that petitioner was employed in the Gulf for several years, returned recently, has sufficient funds with him and owns vehicles. According to the petitioner, copy of proof affidavit was given to his counsel on 17.07.2010 and cross-examination was adjourned on the request of counsel to 12.08.2010. But the clerk of counsel for petitioner in W.P(C) No.27933 of 2010 -: 2 :- the executing court noted the date as 12.09.2009 instead of 12.08.2010. On the same day afternoon counsel for petitioner (in the executing court) learnt about the impugned order issuing warrant of arrest to the petitioner. Learned counsel requests that petitioner may be given opportunity to cross-examine Power of Attorney Holder of respondent No.1 who has sworn the proof affidavit. 3. I gave an anxious consideration of the request of learned counsel for petitioner. But having regard to the facts and circumstances of the case I am not inclined to allow the request. Reason is that in the counter statement filed by petitioner in answer to the application for issue of warrant there is no serious denial of means of petitioner. What the counter statement contains is only a bald averment as against the statement of respondent No.1 that petitioner was employed in the Gulf for several years, returned recently, he is having sufficient funds and also owns vehicles. In that situation I am not inclined to think that petitioner should be given opportunity to contest the case. Petitioner was given sufficient opportunity as revealed from the version of petitioner himself. Hence I do not find reason to interfere with the impugned order. W.P(C) No.27933 of 2010 -: 3 :- 4. Leaned counsel requested that petitioner may be permitted to pay the decree amount in installments. That is a request which petitioner has to make in the executing court and appropriate orders are to be passed by the executing court after hearing counsel for respondent No.1 also. Having regard to the facts and circumstances stated I am inclined to grant two months' time to the petitioner to discharge the decree debt. Resultantly, Writ Petition is dismissed. Petitioner is granted two months' time from this day to discharge the decree debt subject to the following conditions: (i) Petitioner shall deposit in the executing court for payment to respondent No.1, Rs.50,000/- (Rupees Fifty thousand only) within one month from this day. (ii) Entire amount due under the decree shall be paid within two months from this day unless in the meantime executing court after hearing learned counsel for respondent No.1 grants further time or installment facility to the petitioner for payment of the balance amount due. (iii) In case petitioner does not discharge the W.P(C) No.27933 of 2010 -: 4 :- decree debt within the period stated above or default in deposit of the amount as stated in clause (i) above is committed it will be open to respondent No.1 to proceed with personal execution without further enquiry as to the means of petitioner. (v) Warrant of arrest issued to petitioner will stand in abeyance for a period of two months from this day or till default in payment of amount stated in clause (i) above is committed, whichever is earlier. If any request for installment facility is made by petitioner in the executing court, the same shall be considered and appropriate orders passed by the executing court after hearing counsel for respondent No.1 also. THOMAS P. JOSEPH, JUDGE. vsv