IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 7410 of 2008(F) ------------------------- AGAINST THE ORDER DATED 24/11/2007 IN EP 239/06 IN OS.565/2005 of PRL.MUNSIFF COURT, KOTTAYAM .................... PETITIONER: ------------ C.K.ANDREWS @ SHAJI, CHENNATTUMATTAM, NOW RESIDING AT ALOTHU BUILDINGS, OPPOSITE TO PAMPADY SERVICE CO-OPERATIVE BANK, KUTTICKAL HEAD OFFICE, SOUTH PAMPADY P.O., PAMPADY VILLAGE, KOTTAYAM TALUK, KOTTAYAM DIST. BY ADV. SRI.RAJEEV V.KURUP RESPONDENTS: ----------------- K.N.SANCHAYACHANDRAN, KARIKOTTU HOUSE, VELLOOR P.O., PAMPADY. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. ---------------------- W.P.(C)No.7410 OF 2008 ----------------------------- DATED THIS THE 4TH DAY OF MARCH, 2008 J U D G M E N T This writ petition is preferred against the order of the Principal Munsiff, Kottayam in E.P.No.239/06 in O.S.No.565/05 whereby the Court below has directed issuance of arrest warrant to the judgment debtor. The learned counsel would submit that the Court below erred in arriving at a decision. A perusal of the order would reveal that the Court was satisfied that there is no other material available to prove the income of the petitioner other than his right over 14 cents of property. This Court in the decision reported in Kuppuswamy v.P.G.Menon (1992 (2) KLT 203) held as follows: “Where it is proved or admitted or otherwise evident that the judgment debtor owns or possess a house or has got interest therein, 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 W.P.(C)No.7410/08 2 house or that no alienation or encumbrance is possible of that property.” The learned counsel for the writ petitioner would submit before me that the said 14 cents is also under Court attachment and therefore he will not be in a position to raise the funds by dealing with the property. I feel that an opportunity is to be given to prove the same. Therefore the order under challenge is set aside and the matter is remitted back to the executing Court with permission to the writ petitioner herein to adduce evidence in support of his contentions. Needless to say that the decree holder is also permitted to adduce evidence in support of the plea of means. The writ petitioner is also permitted to request the Court to give him time or provide him instalment facility and if consented by the decree holder, permission may be granted to him for remitting the amount in instalments. The Court shall give notice to the decree holder before proceeding with the matter. The writ petition is disposed of accordingly. M.N.KRISHNAN, JUDGE. dsn