IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 28TH MAY 2010 / 7TH JYAISHTA 1932 WP(C).No. 2674 of 2009(R) ------------------------- AGAINST THE ORDER IN EP. 171 /2006 IN OS.786/2004 of II ADDL.MUNSIFF COURT.,NEYYATTINKARA .................... PETITIONER: --------------- R.PALAYYAN MANAPAZHINJI VEEDU, NEDIYAMCODE, PARASUVAKKAL VILLAGE, NEYYATTINKARA, THIRUVANANTHAPURAM. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) RESPONDENT: --------------- R.DIVAKARAN NAIR ANU VILASAM, PARASUVAKKAL, NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.R.GOPAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.2674 of 2009 --------------------------------------- Dated this 28th day of May, 2010 JUDGMENT Petitioner is judgment debtor in E.P.No.171 of 2006 in O.S.No.786 of 2004 of the court of learned Additional Munsiff-II, Neyyattinkara. Respondent obtained a decree for payment of money against petitioner and as per execution petition filed on 05- 06-2006 a sum of Rs.82,418/- with future interest and cost is due to the respondent. Respondent sought personal execution against petitioner and alleged that petitioner has sufficient means but he is willfully not paying the amount due under the decree. Respondent gave evidence as PW1 and proved Ext.A1. Petitioner gave evidence as DW1 and proved Exts.B1 to B3. Ext.A1 is the certificate of encumbrance which shows that petitioner owned various items of properties. Exts.B1 and B2 are produced to show treatment expenses of petitioner. Ext.B3 is the copy of order of the Government of Kerala. Executing court after consideration of the evidence found that petitioner has sufficient means and that he has willfully refused to pay the decree amount. Accordingly, warrant of arrest was ordered to the petitioner as per Ext.P2. Later petitioner filed application for installment facility which was rejected as per W.P.C.No.2674 of 2009 : 2 : Ext.P6. Exts.P2 and P6, orders are under challenge in this proceeding. Learned counsel for petitioner contended that properties referred to in Ext.A1 has already been sold prior to institution of the suit. Learned counsel also requested that petitioner may be permitted to pay the balance amount in installments and requested six months' time for payment. Learned counsel for respondent would contend that sale of the property of petitioner was in favour of his children and that there is sufficient evidence to show that petitioner has sufficient means. 2. It has come out in evidence that petitioner owned various items of properties and that some items were sold to his children. It also came out in evidence that petitioner was accused in two cases for offence punishable under section 138 of the Negotiable Instruments Act. It is based on evidence on record that executing court found that petitioner has sufficient means. It is true that burden is on the decree holder to prove means of the judgment debtor but it is not necessary that the decree holder has to give all details of means of judgment debtor. When some evidence is adduced by the decree holder it is for the judgment debtor to rebut the presumption and show that he has no means. Respondent has adduced sufficient evidence that petitioner has sufficient means and has wilfully failed to pay the amount. There is therefore no reason to interfere with Ext.P2, order. So far as W.P.C.No.2674 of 2009 : 3 : Ext.P6 order is concerned, since installment payment was not agreeable to the respondent executing court could not have granted such a facility. I do not find reason to interfere with Ext. P6, order as well. 3. Learned counsel states that as per Exts.P3 to P5, petitioner has already deposited Rs.13,000/- in the executing court and that pursuant to the order of this court, another sum of Rs.30,000/- has also been deposited in that court. He requested time for payment of the balance amount. Having regard to the facts and circumstances of the case, I permit the petitioner to pay balance amount due under the decree in three equal monthly installments beginning from 01-06-2010. Resultantly the revision petition is dismissed. But petitioner is permitted to deposit in the executing court balance amount due under the decree in three equal monthly installments beginning from 01-06-2010. In case of any default, it will be open to the respondent to proceed with execution pursuant to Ext.P2, order. Order for issue of arrest warrant will remain in abeyance for the said period of three months from 01-06-2010 or till default is committed by petitioner, whichever is earlier. (THOMAS P JOSEPH, JUDGE) Sbna/-