IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 11TH AUGUST 2010 / 20TH SRAVANA 1932 WP(C).No. 25200 of 2010(O) -------------------------- OS.398/2004 of ADDL.M.C.,KOTTAYAM .................... PETITIONER: --------------- SABU.P.T., PUTHENPURAYIL HOUSE, ERAVAINALLOOR KARA, PUTHUPPALLY VILLAGE, KOTTAYAM. BY ADV. SRI.SURIN GEORGE IPE RESPONDENT: --------------- POTHEN PHILIPOSE @ KOCHUMON, PALAPARAMPIL HOUSE, ERAVAINALLOOR KARA, PUTHUPPALLY VILLAGE, KOTTAYAM-686 011 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 11/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.25200 of 2010 --------------------------------------- Dated this 11th day of August, 2010 JUDGMENT This writ petition is at the instance of judgment debtor in E.P.No.137 of 2009 in O.S.No.398 of 2004 of the court of learned Additional Munsiff, Kottayam. Respondent has obtained a decree for payment of money and put it into execution. Personal execution against petitioner was sought for stating that petitioner has means to pay the decree amount but has neglected or refused to pay the amount. Petitioner, of course denied the allegations. Respondent gave evidence as DHW1 and stated that petitioner is engaged as carpenter earning Rs.400/- per day and is also engaged in business of manufacturing furniture from which he is earning Rs.10,000/- per month. Petitioner is examined as RW1. He admitted that he is a carpenter but claimed that he has no regular employment. He claimed that he is a coolie by occupation. Exts.B1 and B2 are produced to show illness of himself and his mother who was a cancer patient. Executing court was not impressed by Exts.B1 and B2, evidence of petitioner as RW1 and found means of petitioner. That was followed by an order to issue warrant of arrest. Executing court W.P.C.No.25200 of 2010 : 2 : pointed out that Ext.B1 was of the year 2001 and Exts.B1 and B2 were opposed by respondent and were marked subject to proof but the same are not properly proved. Petitioner as RW1 admitted that he is engaged in carpentry work. Executing court has observed that petitioner appeared to be an able bodied person. In Kuppuswamy Vs. P. G. Menon (1992(2) KLT 203) it is held that initial burden of proving means of judgment debtor lies on the decree holder but it is not as if the latter has to give evidence of all details of source of income of judgment debtor. If some evidence regarding income is given it is for the judgment debtor to controvert it. On the facts and evidence of the case I do not find reason to interfere with the order of executing court finding that petitioner has means and has neglected or refused to pay the amount. 2. Learned counsel stated that petitioner has already paid Rs.18,000/- towards the decree amount and what remained is around Rs.24,000/-. Learned counsel seeks installment facility to pay the amount. That, however a question which executing court has to decide after hearing counsel for respondent. Having regard to the amount due under the decree I am inclined to grant three months' time to the petitioner to pay the amount. Resultantly this writ petition is dismissed but, petitioner is W.P.C.No.25200 of 2010 : 3 : granted three (3) months' time from this day to discharge the liability under the decree subject to the following conditions: (i) Petitioner shall deposit Rs.5,000/- (Rupees Five Thousand Only) in the executing court within three weeks from this day for payment to the respondent. The entire liability shall be discharged within a period of three months unless petitioner is granted installment facility for payment of the balance amount. (ii) In case petitioner fail to deposit the sum of Rs.5,000/- within a period of three weeks this writ petition stand dismissed. (iii) Warrant of arrest against petitioner shall stand in abeyance for the said period of three months. I make it clear that in case condition for deposit of amount is not complied or, entire amount is not paid within three months (unless in the meantime executing court passed appropriate orders permitting payment of the amount in installments) it is open to the respondent to proceed with execution pursuant to Ext.P2, order without any further enquiry as to means of petitioner. (iv) Notice to the respondent is dispensed with in view of the order I proposed to pass on this writ petition. (THOMAS P JOSEPH, JUDGE) Sbna/-