IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 26TH FEBRUARY 2008 / 7TH PHALGUNA 1929 WP(C).No. 6592 of 2008(I) ------------------------- (E.P.335/03 IN S.S.1942/00 OF THE FIRST ADDL. SUB COURT, KOZHIKODE) PETITIONER: ------------ M.K.MOHAMMED RASHEED, WHITE CABIN, CONVENT ROAD, NAGARAM AMSOM, KOZHIKODE DISTRICT. BY ADV. SRI.P.S.SREEDHARAN PILLAI RESPONDENT: ------------- M/S.KACHIN CREATIONS, PARVATHI INDUSTRIAL ESTATE, UNIT NO.317/318, SUN MILL COMPOUND, LOWER PEARL, MUMBAI-400 013. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 6592 OF 2008 --------------------- Dated this the 26th day of February, 2008 JUDGMENT This writ petition is preferred against the order of the Subordiante Judge, Kozhikode, in EP 335/03 in Summary Suit 1942/00 of the Bombay High Court. A perusal of the order would reveal that the EP is filed for realisation of Rs, 1,86,170/- together with interest. The power of attorney holder of decree holder gave evidence. He deposed before the court that the judgment debtor is a very rich person leading a luxurious life and is living in a palacious building. He also deposed that he is the owner of two well established textile shop at Calicut by name “Garments Sellers” and “Abi's Sarees.” But the respondent would contend that since he has no means to pay the decree debt, he is not liable to be proceeded with. It is also his version that he is suffering from illness and has stopped the business of garment in the year 1999. Ext.X1 is an application filed by the judgment debtor on 24.2.03 for the renewal of licence in respect of the business concern by name Garment Sellers. Ext.X2 is an application dated 20.2.04 for renewal of licence with WPC NO 6592/08 2 respect to the aforesaid concern during 2004-05. Ext.X5 is a letter dated 15.3.05 written by the judgment debtor to the Secretary of Calicut Corporation informing his intention to stop the business. It is seen that he had closed the business on 15.3.05 and new licence is taken in the name of the daughter on 17.5.05. The court below considered these documents cumulatively and came to the conclusion that what is stated by the judgment debtor is not true and the alleged transfer is only to defeat the decree holder. I totally agree with the finding of the court below and hold that it was only with an intention to evade payment, such a transfer has been effected in the name of the daughter. Therefore all the ingredients necessary under Section 51 are satisfied and therefore the finding of the court below on the question of no means is confirmed. 2. It is submitted by the learned counsel for the petitioner that the client had paid an amount of Rs.20,000/- and subsequently at the rate of Rs.5,000/- per month as ordered by this court, which will indicate that he had no intention to defeat the decree holder. All these payments were made at the direction of this court. But since some amount have been paid, I do not want to send the judgment debtor directly to jail and since he really intends to pay back the WPC NO 6592/08 3 balance amount also. Therefore I dispose of the writ petition as follows: (1) The finding of means by the court below is confirmed. (2) The judgment debtor is directed to pay the balance decree amount in five monthly equal instalments commencing from 28.3.08. If the judgment debtor commits default in making payment of the first instalment and thereafter of two consecutive instalments, the benefit conferred on the judgment debtor will stand cancelled and the decree holder can request the court to execute the warrant of arrest. (3) The court below is directed not to execute the order issued for warrant of arrest till a default is made. M.N.KRISHNAN, JUDGE vps WPC NO 6592/08 4 WPC NO 6592/08 5 WPC NO 6592/08 6