IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).NO. 20358 OF 2010(O) ------------------------------------------- AGAINST THE ORDER IN EP 193/2008 IN OS.672/2004 OF ADDL.MUNSIFF COURT,CHERTHALA .................... PETITIONER(S): ---------------------- BABU, S/O. VELAYUDHAN, ARYA BHAVAN, UZHUVA MURI, VAYALAR EAST VILLAGE. BY ADV. SRI.B.PRAMOD RESPONDENT(S): ------------------------- PHALGUNA, 'SURYA VANDANAM' VEETTIL, CHERTHALA TALUK, ERAMALLOOR.P.O. ADV. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF E.P. NO.193 OF 2008 IN O.S. NO.672 OF 2004 ON THE FILE O THE ADDITIONAL MUNSIFF'S COURT, CHERTHALA. EXHIBIT P2 TRUE COPY OF THE OBJECTION FILED BY THE RESPONDENT TO EXT.P1, E.P. EXHIBIT P3 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE DEPOSITION IN CROSS-EXAMINATION OF THE PETITIONER. EXHIBIT P4 TRUE COPY OF THE PAY SLIP OF THE RESPONDENT FOR THE MONTH OF JULY, 2009. EXHIBIT P5 TRUE COPY OF THE PROOF AFFIDAVIT ALONG WITH THE DEPOSITION IN CROSS-EXAMINATION O THE RESPONDENT. EXHIBIT P6 TRUE COPY OF THE PAY SLIP OF THE RESPONDENT FOR THE MONTH OF AUGUST, 2009. EXHIBIT P7 TRUE COPY OF THE EXTRACT OF THE STATEMENT OF ACCOUNT OF THE RESPONDENT. EXHIBIT P8 A RUE COPY OF THE ORDER DATED 4.6.2010 IN E.P. NO.193 OF 2008 IN O.S. NO.672 OF 2004 ON THE FILE OF THE ADDITIONAL MUNSIFF'S COURT, CHERTHALA. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) NO.20358 of 2010 ==================================== Dated this the 13th day of August, 2010 J U D G M E N T This Writ Petition is in challenge of Ext.P6, order passed by the learned Additional Munsiff, Cherthala in E.P. No.193 of 1998 in O.S. No.678 of 2004. Petitioner who obtained a decree for recovery of money against respondent sought personal execution against him stating that as an employees of the State Bank of Travancore he is getting salary of more than Rs.12,000/- per month and that in spite of having means he has refused and neglected to pay the amount due under the decree. Respondent opposed the application contending that after deduction his take home salary is only meagre and that he has no means to pay the decree debt. He expressed desire to pay off the amount in instalments after the month of June, 2010. Executing court referring to Ext.P6, salary certificate and considering the take home salary of respondent found that he has no sufficient means to pay the decree amount and accordingly refused personal execution vide Ext.P8, order. Learned counsel for petitioner contended that only compulsory deductions under Section 60 of W.P(C) No.20358 of 2010 -: 2 :- the Code of Civil Procedure (for short, “the Code”) should have been deducted from salary to decide means of respondent. Learned counsel for respondent stated that notwithstanding the contentions urged by respondent in the executing court he is prepared to discharge the liability if some time is given. 2. I am not persuaded to uphold the view taken by the executing court that only the take home salary could be considered for deciding the means. Only such of the amount as are not attachable under Sec.60 of the Code alone could be excluded from consideration while deciding means of respondent. Viewed in that line decision taken by the executing court cannot be sustained. 3. So far as request for installment facility is concerned learned counsel states that respondent is prepared to pay/ deposit Rs.10,000/- immediately and pay the balance amount in monthly installments. Counsel for petitioner stated that in case this Court is inclined to grant installment facility respondent may be directed to pay not lees than Rs.10,000/- per month. 4. Having regard to the facts and circumstances stated before me I am inclined to give some time to the respondent to discharge the liability. W.P(C) No.20358 of 2010 -: 3 :- Resultantly this Writ Petitioner is allowed in the following lines. (i) Exhibit P8, order passed by the executing court is set aside. (ii) Respondent is permitted to pay the amount due under the decree in installments in the following manner: (a) Respondent shall deposit Rs.10,000/- (Rupees Ten thousand only) in the executing court for payment to the petitioner within two weeks from this day. (b) Respondent shall pay the balance amount due under the decree in monthly installments beginning form 1.09.2010. (c) Deposit of such monthly installment shall not be less than Rs.7,500/- (Rupees Seven thousand and five hundred only). (d) It is made clear that by the last installment entire balance amount due under the decree W.P(C) No.20358 of 2010 -: 4 :- shall have been paid/deposited. (e) It is made clear that it will be sufficient compliance with the direction for deposit in case the amount is paid to the petitioner against proper receipt and certified in the executing court as provided under law. (iii) In case the deposit directed to be made within two weeks is not made or in case of default in payment of any two installments it will be open to the petitioner to proceed with personal execution against respondent on the premise that in spite of having sufficient means he has refused/neglected to pay the amount due under the decree. THOMAS P. JOSEPH, JUDGE. vsv