IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 C.R.P.No. 660 of 2008() --------------------- (AGAINST THE ORDER DATED 11/07/2008 IN E.P NO. 105/2007 IN O.S.NO. 327/2003 OF MUNSIFF'S COURT AT ALATHUR.) REVISION PETITIONER/ JUDGMENT DEBTOR/DEFENDANT NO.2: ---------------------------------------------------- APPUKUTTAN.P.M, S/O. A. MADHAVAN, PURANDAYIL HOUSE, MANJALUR HOUSE, PALAKKAD. BY ADV. SRI.SAJAN VARGHEESE K. RESPONDENT/ DECREE HOLDER/PLAINTIFF: ------------------------------------ STATE BANK OF TRAVANCORE, PALAKKAD BRANCH, REPRESENTED BY ITS CHIEF MANAGER. BY ADV. R.S. KALKURA THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.R.P.No. 660/2008 ORDER ON I.A NO.1957 OF 2008 IN C.R.P NO.660 OF 2008 DISMISSED SD/- 29/08/2008 M. SASIDHARAN NAMBIAR /TRUE COPY/ P.A. TO JUDGE M.SASIDHARAN NAMBIAR, J. ........................................... CRP.No. 660 OF 2008 ............................................ DATED THIS THE 29TH DAY OF AUGUST, 2008 ORDER Petitioner is the second judgment debtor and respondent the decree holder in O.S.327 of 2003. This petition is filed under Article 227 of Constitution of India challenging the order dated 11.7.2008 whereunder executing court directed issuance of arrest warrant as against the petitioner in E.P.105 of 2007. 2. Learned counsel appearing for petitioner and learned standing counsel appearing for respondent were heard. 3. The argument of learned counsel appearing for petitioner is that petitioner is only a surety and the decree is a charged decree and the principal debtor is not impleaded in the execution petition and without proceeding against the principal debtor, decree holder is not entitled to proceed against the petitioner. Learned counsel also submitted that petitioner is willing to pay the decree debt in instalments and he may be granted an opportunity to pay of the decree debt in instalments. 4. Learned counsel appearing for respondent argued that when the liability created under the decree is joint and several, on the ground that petitioner is only a surety, he is not entitled to contend that he cannot be proceeded against. It was also pointed out that CRP 660/2008 2 there is no plea of no means before the court and in such circumstances, no interference need be made. Learned counsel also pointed out that more than Rupees One lakh is due and sufficient time has already been granted. 5. When the decree creates a joint and several liability, petitioner is not entitled to contend that being a surety, he can be proceeded only after proceeding against the principal debtor. Decree holder is entitled to proceed against any or all the defendants. As petitioner has no case that he has no means, it cannot be said that the order of arrest passed by the executing court is illegal. But considering the submission made by learned counsel appearing for petitioner that petitioner is prepared to pay the entire decree debt in instalments, learned Munsiff is directed to keep the order of arrest in abeyance and petitioner is permitted to pay the entire decree debt in twelve equal monthly instalments. If petitioner commits default in payment of two consecutive monthly instalments, executing court is to execute the warrant of arrest. First monthly instalment will fall due on 29.9.2008 and all subsequent instalments on the 29th of each month. M.SASIDHARAN NAMBIAR, JUDGE lgk/-