IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 18TH MAY 2010 / 28TH VAISAKHA 1932 WP(C).No. 14839 of 2010(O) -------------------------- AGAINST THE ORDER IN EP.19/2009 IN OS.742/2006 of PRINCIPAL MUNSIFF COURT,ERNAKULAM .................... PETITIONER(S): --------------- JOSE P. MATHEW, AGED 41 YEARS, S/O. P.V.MATHEW, PARAYATTUKATTIL HOUSE, EROOR P.O., THRIPUNITHURA. BY ADV. SRI.N.RAGHUNATH SRI.JINU JOSEPH RESPONDENT(S): --------------- GOSRI CHIT FUNDS (P) LTD., MARKET ROAD, ERNAKULAM, KOCHI-35. ADV. SHRI JIMMY JOHN (FOR CAVEATOR) THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/05/2010, ALONG WITH WPC NO. 14853 OF 2010 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.14839/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE SAID EA NO.11/2009 IN EP NO.19/2009 IN OS 742/2006 EXT.P2 - TRUE COPY OF THE COUNTER AFFIDAVIT EXT.P3 - TRUE COPY OF THE PROOF AFFIDAVIT OF DECREE HOLDER EXT.P4 - TRUE COPY OF THE ORDER IN EP NO.19/2009 IN OS 742/2006 DATED 29.3.2010 THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) Nos.14839 of 2010 & 14853 of 2010 -------------------------------------- Dated this the 18th day of May, 2010. JUDGMENT These petitions are in challenge of the order for issue of warrant against petitioner consequent to the finding that inspite of having sufficient means he has willfully refused to pay the decree amount due to the respondent. Ext.P1 is the application for issue of warrant and Ext.P2, the counter filed by the petitioner who is the judgment debtor in W.P(C) No.14839 of 2010 and judgment debtor No.2 in W.P.(C) No.14853 of 2010. Ext.P3 is the copy of proof affidavit filed by PW1 who gave evidence on behalf of respondent regarding the means of petitioner. Ext.P4 is the order for issue of arrest warrant. In the proof affidavit and in cross-examination PW1 asserted that petitioner has sufficient means to discharge the decree debt. He stated that petitioner along with his brother, Thomas P.Mathew is running business though the licence was taken in the name of the latter. PW1 has referred to the other sources of income for the petitioner. Petitioner/judgment debtor has not mounted the witness box to controvert the said evidence. Executing court, accepting evidence of PW1 ordered warrant of arrest to the petitioner which is under challenge in these proceedings. Learned counsel for petitioner would contend that even Ext.P3, WP(C) Nos.14839 & 14853/20100 2 proof affidavit of PW1 would show that licence for the business is in the name of brother of petitioner and that there is nothing on record to show that petitioner has any say in that business. 2. Petitioner cannot cull out a particular statement alone from the proof affidavit of PW1. In the proof affidavit PW1 has asserted that the business is being run jointly by petitioner and his brother though the licence happens to be in the name of the latter. In Kuppuswamy v. P.G.Menon (1992 (2) KLT 203) this Court has stated that though burden of proving circumstances specified in Section 51 of the Code of Civil Procedure (for short, “the Code”) lies on the decree holder, strict proof of every details is not necessary and that when the decree holder has adduced evidence regarding means of judgment debtor onus shifted to the judgment debtor to show that he does not possess sufficient means to discharge the liability. In this case, sufficient evidence has been let in by PW1 and there is no contra evidence. Petitioner has felt shy in mounting the witness box. As such the orders under challenge do not suffer any legal infirmity. 3. At this stage learned counsel for petitioner requested three months time to discharge the liability. I have heard learned counsel for respondent on the said request. Having regard to the difficulties expressed by learned counsel, I am inclined to grant three months' time to the petitioner to discharge the liability in these cases on condition that he will, within one month from this day WP(C) Nos.14839 & 14853/20100 3 deposit in the executing court for payment to respondent 25% of the decree amount payable in each of the cases. In case that condition is complied, the order issuing warrant of arrest will stand in abeyance for a period of three months from this day. If petitioner does not comply with the said conditions, it will be open to the executing court to proceed pursuant to Ext.P4, orders under challenge in these cases. Writ Petitions are disposed of accordingly. THOMAS P.JOSEPH, Judge. cks