IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 30TH SEPTEMBER 2011 / 8TH ASWINA 1933 CRP.No. 431 of 2011 ----------------------------- [E.P. NO. 410/2009 IN O.S. NO. 83/2001 OF THE MUNSIFF'S COURT, KOYILANDY DATED 26/07/2011] ............... REVISION PETITIONERS/RESPONDENTS 2 & 3: -------------------------------------------------------------------- 1. V.K. SIVADASAN, RESIDING AT VARAKUNNUMMAL, KURUVANGADU AMSOM AND DESOM, KOYILANDI. 2. K.M. SUKUMARAN, KOLLANGOTTU MEETHAL HOUSE, KURUVANGADU AMSOM AND DESOM, KOYILANDI. BY ADV. SRI.JACOB ABRAHAM. RESPONDENT/PETITIONER: ----------------------------------------- THE MANAGER, PUNJAB NATIONAL BANK, KOYILANDI BRANCH, KOYILANDY. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. THOMAS P JOSEPH, J. ---------------------------------------- C.R.P.No.431 of 2011 --------------------------------------- Dated this 30th day of September, 2011 ORDER Petitioners are the judgment debtors 2 and 3 in E.P.No.410 of 2009 in O.S.No.83 of 2001 of the Court of learned Munsiff, Koyilandy aggrieved by the order dated 26.07.2011 issuing warrant of arrest to the “judgment debtor” but, with a rider that it is open to the “respondent” to file application for installment payment @Rs.2,000/- per month. 2. Learned counsel for petitioners contends that there is no satisfactory evidence regarding the means of petitioners. It is pointed out that the order is not clear as to whether it concerns the second petitioner/judgment debtor No.3 also. A further objection learned counsel raised is that the amount claimed in the execution petition is excessive which has not been taken into account. 3. On going through the order under challenge, it is not clear whether the order concerns the second petitioner/judgment debtor No.3 also. For, learned Munsiff has referred to either, “judgment debtor” or “respondent”. It also appears that the discussion regarding means is concerning the first C.R.P.No.431 of 2011 -: 2 :- petitioner/judgment debtor-2. Ext.A1 is the copy of the building tax assessment register relating to the house belonging to the first petitioner and Ext.A2 is the loan application. In view of that, I make it clear that it is open to the petitioners to seek a clarification from the learned Munsiff whether the impugned order concerns second petitioner/judgment debtor-3 also and in case it is clarified that the order concerns second petitioner/judgment debtor-3 also, I leave it open to the second petitioner/judgment debtor-3 to challenge the impugned order by way of separate revision. 4. So far as means of first petitioner is concerned, I think, there is no reason to interfere. Ext.A1 shows that the first petitioner owns a building and he did not denied that also. Nor did he adduce any contra evidence. In Kuppuswamy v. P.G. Menon (1992(2) KLT 203) it is held that the initial burden of proving the circumstances specified in Sec.51 Code of Civil Procedure lies on the decree-holder, strict proof of every details is not necessary, that the decree-holder should give some indication or details of the properties or assets of the judgment debtor and then it is for the judgment debtor to adduce rebuttal evidence. It is admitted or proved that the judgment debtor has a house, then, it must be presumed that he can raise the funds by C.R.P.No.431 of 2011 -: 3 :- its sale, mortgage or otherwise encumbering it. The first petitioner has not adduced any contra evidence. Hence I do not find reason to interfere with the impugned order to the extent (if any) it concerns the first petitioner/judgment debtor-2. 5. As to the contention that the amount claimed in the execution petition is excessive, that is a matter which is not required to gone into in this civil revision. It is open to the petitioners to take up that plea before the executing court at the appropriate stage. 6. It is seen that learned Munsiff has given opportunity to the “respondent” to file application for installment payment @Rs.2,000/- per month. Since I stated that the order requires clarification whether it relates to second petitioner also, I am inclined to treat the above said direction of the learned Munsiff for the time being and until clarification if any is made by the learned Munsiff as concerning the first petitioner/judgment debtor-2. To facilitate first petitioner filing application for installment as directed in the order under challenge, I am inclined to direct that warrant of arrest issued to the first petitioner will stand in abeyance till 29.10.2011 subject to the condition that before 15.10.2011 first petitioner pays/deposits in the executing court for payment to the respondent `.3,000/- C.R.P.No.431 of 2011 -: 4 :- (Rupees Three Thousand Only). 7. Since I stated that the order requires clarification whether it concerns second petitioner as well, it is directed that the warrant of arrest if any issued to the second petitioner will stand in abeyance till 29.10.2011. Within that time, the second petitioner shall seek necessary clarification from the executing court. With the above directions this civil revision is disposed of. (THOMAS P JOSEPH, JUDGE) Sbna/-