IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 CRP.No. 43 of 2011() ------------------------ AGAINST THE ORDER DATED 04/12/2010 IN EP.412/2008 IN ARC.1539/2005 of MUNSIFF COURT, MANJERI .................... REVN. PETITIONER(S): 1ST RESPONDENT: ------------------------------------------------- CHUNDAKKADAN HAMZA KOYA S/O.KUNHIPOCKER, CHUNDAKKADAN HOUSE, MORAYUR AMSOM DESOM, ERNAD TALUK, MALAPPURAM DISTRICT. BY ADV. SRI.JAMSHEED HAFIZ RESPONDENT(S): PETITIONER AND 2ND RESPONDENT --------------------------------------------------------------- 1. THE SECRETARY CO-OPERATIVE BANK, MORAYUR, MORAYUR P.O., ERANAD TALUK, MALAPPURAM DISTRICT-673 649. 2. NELLISSEERI VELAYUDHAN, S/O.NOTTAN, MORAYUR P.O., ERNAD TALUK, MALAPPURAM DISTRICT-673 649. R1 BY ADV. SRI.SUNNY MATHEW THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 19/11/2011, ALONG WITH CRP NO.44/2011 CRP NO.45/2011 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: svs THOMAS P. JOSEPH, J. -------------------------------------- C.R.P.Nos.43, 44 and 45 of 2011 -------------------------------------- Dated this the 19th day of November, 2011. ORDER 1st respondent appears through counsel in all the cases. Notice to respondents 2 and 3 who are not served is dispensed with since they are only judgment debtors. 2. Petitioner, common in all these cases is the 1st judgment debtor in E.P.Nos.412 of 2008, 414 of 2008 and 413 of 2008 of the court of learned Munsiff, Manjeri where the awards in A.R.C.Nos.1539, 1540 and 1541 of 2005, respectively are being executed against petitioner and respondents 2 and 3. 1st respondent/decree holder sought personal execution against petitioner. Though petitioner pleaded no means and claimed to be a coolie, the executing court found that petitioner has means and ordered warrant of arrest to him. The said orders are under challenge in these proceedings. 3. Learned counsel for petitioner contends that petitioner has no sufficient means and that the finding to the contra is not sustainable. Learned counsel submits that petitioner has only half share in the 10 cents of land and petitioner being a coolie that fractional interest cannot be taken into account while considering the means of petitioner as that property is exempted under CRP Nos.43,44 & 45/2011 2 Section 60 of the Code of Civil Procedure (for short, “the Code”) from attachment. Learned counsel for 1st respondent supported finding of the learned Munsiff. 4. It is not disputed that petitioner has atleast half share in ten cents of land. It is true that the initial burden of proving means is on the 1st respondent. But when the 1st respondent has adduced some evidence to show that petitioner has means, the onus shifts to the petitioner. This Court in Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) has pointed out that when it is shown that the judgment debtor has some means, the burden to rebut the presumption is shifted to him. In that decision it is held that when it is shown that the judgment debtor owns some property or house or has interest in such property, it must be presumed that he is capable of raising the necessary funds if necessary by sale or mortgage, etc. of such property or interest. In that view of the matter I do not find reason to interfere with the impugned orders. 5. Having regard to the circumstances stated and having heard the views of learned counsel for 1st respondent/decree holder as well, I am inclined to permit petitioner pay the amount in ten (10) equal monthly installments. CRP Nos.43,44 & 45/2011 3 Resultantly these civil revision petitions fail. But petitioner is permitted to pay the amount due in each case in ten (10) equal monthly installments as follows: i. Petitioner is permitted to pay/deposit in the executing court for payment to the 1st respondent the amount due in the respective execution petitions as per the respective awards in ten (10) equal monthly installments beginning from 19.12.2011 provided that by the last installment the entire amount due under the awards is paid. ii. Payment/deposit as aforesaid shall be made on or before th 22nd of each month and if that day of a month happens to be a holiday, such payment/deposit shall be made on the next working day. iii. Whatever amount paid by the petitioner shall be adjusted in the amount due. iv. In case of any two default in payment of the installments, it is open to the 1st respondent to proceed with personal execution pursuant to the orders under challenge without any further enquiry regarding means. CRP Nos.43,44 & 45/2011 4 v. Warrant of arrest issued to the petitioner will stand in abeyance during the said period of ten (10) months beginning from 19.11.2011 or till default is committed, whichever is earlier. All pending interlocutory applications are dismissed. THOMAS P.JOSEPH, Judge. cks