IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 24TH MAY 2010 / 3RD JYAISHTA 1932 CRP.NO. 256 OF 2010() -------------------------------- EP.22/2004 OF I ADDL. DISTRICT COURT, KOLLAM A.P. NO.39 OF 1996, ARBITRATOR, A.S.N. HEBBAR, MANIPAL) .................... REVN. PETITIONER - 3RD JUDGMENT DEBTOR: ------------------------------------------------------------ VIDHYADHARAN, AGED 58 YEARS, S/O. LATE KOCHATHAN, VETTOLITHARAYILL HOUSE, MANAKKARA, SASTHAMKOTTA P.O., KOLLAM DISTRICT. BY ADV. SRI.T.GOPALAKRISHNAN RESPONDENT – DECREE HOLDER – JUDGMENT DEBTORS 1 & 2(S): ----------------------------------------------------------------------------------------- 1. MAHARASHTRA APEX CORPORATION LTD., MANIAPL, UDUPPI TALUK, REPRESENTED BY N. THYAGARAJAN, DEVELOPMENT OFFICER, KOLLAM BRANCH AND POWER OF ATTORNEY HOLDER. 2. P.M. ABUDL SAMAD, S/O.ABDUL KHADER, F.B. MANZI, MURIKLKUMPUZHA, P.O., THIRUVANANTHAPRUAM. 3. MRS. T. EMILY, W/O. LAWRENCE GOMEZ, PUTHEN VEEDU, THILLERY, KOLLAM. THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== C.R.P. No.256 of 2010 ==================================== Dated this the 24th day of May, 2010 O R D E R Judgment No.3 in E.P. No.22 of 2004 in A.P. No.39 of 1996 before the Arbitrator, A.S.N. Hebbar, Manipal being executed in the court of First Additional District Court, Kollam is the petitioner before me. Petitioner and respondent Nos.2 and 3 availed loans from respondent No.1/decree holder with each of them standing surety to other. There was non-payment of the amount and consequent to that at the initiative of respondent No.1 a sole Arbitrator was appointed. He has passed award in favour of respondent No.1 which is sought to be executed in the court of learned First Additional District Court, Kollam. Petitioner has a contention that there was no notice of arbitration proceeding leading to the award but that is not a matter which the petitioner could successfully raise in the execution court. 2. Challenge is to the order of learned Additional District Judge that petitioner has sufficient means to discharge the decree debt but he has wilfully failed to do so. One contention raised by C.R.P. No.256 of 2010 -: 2 :- petitioner is that respondent Nos.2 and 3 who have sufficient means are not being proceeded against. That is not a contention which the execution court can entertain. It is for the respondent to decide which of the judgment debtors is to be proceeded against. 3. So far as means of petitioner is concerned, petitioner gave evidence as D.W.1 while Power of Attorney of respondent No.1 gave evidence as P.W.1. It is in evidence that petitioner retired as a Junior Superintendent from the Industrial Training Department on 27.12.2007 and at that time he received Rs.1,00,000/- by way of retirement benefits and another sum of Rs.1,50,000/- as commutation of pension. His annual pension is Rs.49,296/- as revealed from Ext.B3(a) and he is drawing a monthly pension of Rs.4,489/- as revealed from Ext.B4. According to the petitioner his children are studying and he has no sufficient means to pay the decree amount. There was an earlier Writ Petition in which petitioner had offered to pay the decree amount in monthly installments of Rs.1,300/- each. Executing court has considered the evidence on record and came to the conclusion C.R.P. No.256 of 2010 -: 3 :- that petitioner has sufficient means to satisfy the decree debt. True, burden of proof is on the decree holder. But this Court in Kuppuswamy v. P.G. Menon (1992 [2] KLT 203) has stated that it is not as if the decree holder is required to bring in every details and that if some evidence is produced it is for the judgment debtor to adduce contra evidence. Having regard to the evidence on record and circumstances brought out I find no illegality or manifest injustice in the executing court holding in favour of respondent No.1 that petitioner has sufficient means to discharge the decree debt. There is no reason to interfere. 4. Executing court directed detention of petitioner in civil prison for a period of three months in case the decree debt is not discharged within five months and first installment is paid on 09.04.2010. Having regard to the circumstances stated and request made I am inclined to grant the petitioner time to discharge the decree liability. Petitioner shall discharge the decree debt in six equal monthly installments beginning from 01.06.2010. In case there is failure to pay any two installments it will be open to respondent No.1 to proceed with the execution C.R.P. No.256 of 2010 -: 4 :- or file fresh execution petition before the expiry of the said period of six months on the strength of the impugned order as if execution was stayed till then. Civil Revision Petition is disposed of as above. THOMAS P. JOSEPH, JUDGE. vsv