IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 WP(C).No. 788 of 2008(R) ------------------------ AGAINST THE ORDER IN EP.515/2003 IN OS.310/2001 of M.C.,WADAKKANCHERRY .................... PETITIONER: JUDGMENT DEBTORS 1 & 2 ------------------------------------------------ 1. VIJAYAN, S/O.PAKKATH SANKARAN, MANGADU DESOM, KOTTAPURAM VILLAGE, TALAPPILLY TALUK. 2. SHAJU, S/O.PAKKATH SANKARAN, MANGADU DESOM, KOTTAPPURAM VILLAGE, TALAPPILLY TALUK. BY ADV. SRI.SAJITH KUMAR KANGHINGHAT SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: DECREE HOLDER --------------------------------------- JOY, S/O.MURINGATHERI PATHROSE, KARIYANNUR VILLAGE, ERUMAPETTY DESOM, TALAPPILLY TALUK. BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NO. 788 OF 2008 = = = = = = = = = = = = = = = Dated this the 7th day of January, 2008. J U D G M E N T This writ petition is preferred against the order of the Munsiff, Wadakanchery in E.P.515/03 in O.S.310/01. By the said order the Court below has issued arrest warrant against judgment debtors 2 and 3 for realisation of the amount. I am informed that the execution is of a compromise decree whereby there is a time limit to pay the amount and in case of non-payment a charge is to be created. Unfortunately the decree is not before me to verify and satisfy about its correctness. At any rate since the decree amount was not paid within the stipulated time of 30 days a petition was filed under Order 21 Rule 41(2) to furnish particulars of the judgment debtor's property. The first judgment debtor filed an affidavit to the effect that judgment debtors 1 to 3 are in joint ownership of 18 cents of land in Sy.No.619/2 of Nelluvay Village. The Court below relying upon the dictum W.P.C 788 OF 2008 -:2:- laid down in Kuppuswamy v. P.G. Menon (1992 (2) KLT 203) held that there is realisable assets and the presumption has not been rebutted and so ordered issuance of warrant. In the said decision it is held that, “ Where it is proved or admitted or in otherwise evident that the judgment debtor owns or possess a house or has got interest therein, the normal presumption is that he is able to pay the debt either by sale or mortgage or creating other encumbrance of the house. In such circumstances it is open to the judgment debtor to rebut the presumption and prove either that he does not own or possess the house or that no alienation or encumbrance is possible of that property. “ 2. The rebuttable presumption is not rebutted and therefore I cannot find fault with the Court below for ordering warrant of arrest. At the same time it is only just and reasonable to grant some time to the judgment debtors to wipe off the liability. Therefore, I confirm the order of the Court below but direct the Court below not to arrest W.P.C 788 OF 2008 -:3:- judgment debtors 2 and 3 for a period of six weeks from today so as to enable them to wipe off the liability due under the decree. The writ petition is disposed of accordingly. M.N. KRISHNAN, JUDGE. ul/-