IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P. JOSEPH TUESDAY, THE 7TH SEPTEMBER 2010 / 16TH BHADRA 1932 CRP.No. 461 of 2010() -------------------- AGAINST THE ORDER DATED 12/08/2010 IN E.P.4/2005 IN OS.45/2002 of SUB COURT, ATTINGAL .................... REVISION PETITIONER: (JUDGMENT(DEBTOR/DEFENDANT) ------------------------------------------------------------------------------------ BALAKRISHNAN NAIR, S/O. MADHAVAKURUP, K.P.S. ACADAMY CHAIRMAN, KRISHNAVILASOM VEEDU, PULIMATHU DESOM AND VILLAGE. BY ADV. SRI.T.M. ABDUL LATIFF RESPONDENT: (DECREE HOLDER/PLAINTIFF) ----------------------------------------------------------------- K.B.PRABHAKARAN, S/O KUNJUKRISHNAN, KATTAKKALIL VEEDU, KODUVAZHANNUR VILLAGE, PULLAYIL.P.O. BY ADV. SRI. J. JAYAKUMAR (CAVEATOR) THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 07/09/2010, ALONG WITH I.A. NO. 2177 IN CRP NO. 124/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Mn THOMAS P JOSEPH,J. --------------------------------------- C.R.P.NO.NO. 461 OF 2010 AND I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 ------------------------------------------ Dated this the 7th day of September, 2010. ORDER Respondent appears through counsel. Heard both sides. 2. Respondent has obtained a money decree against petitioner in O.S.45 of 2002 of the court of learned Sub Judge, Attingal. Respondent filed E.P.No.4 of 2005 seeking personal execution against petitioner. Executing court found that petitioner, having sufficient means has neglected and refused to pay the amount due under the decree and issued warrant for his arrest. Petitioner challenged that order in this court in Cr.P.No.947 of 2005. This court disposed of that revision refusing to interfere with the finding regarding means but permitting petitioner to pay the amount due under the decree in 30 (thirty) equal monthly installments. It was also directed that in case of two consecutive defaults in payment of the installments, executing court could issue warrant of arrest against petitioner. Petitioner paid two installments but, allegedly for the reason of inability, did not pay the rest of installments. Thereupon, executing court ordered warrant of arrest against petitioner. Petitioner challenged that order in this court in C.R.P.NO.NO. 461 OF 2010 IN I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 2 C.R.P.No.124 of 2010. This court allowed the C.R.P. on the impression that executing court had not conducted any enquiry or entered finding as to the means of petitioner. The order for issue warrant was set aside and the executing court was directed to conduct an enquiry into the alleged means of petitioner. Executing co urt observed that evidence in the matter was taken on 31.08.2005 and, means of petitioner was found which was no interfered with in C.R.P.No.947 of 2005. Executing Court observed that it is suppressing the said fact that petitioner obtained the order of C.R.P.No.124 of 2010. The executing court held that no further evidence of means is needed as it is already proved and ordered warrant of arrest to the petitioner. That order is under challenge in this revision. Learned counsel for petitioner has contended that finding of means was on 31.08.2005 and that did not prevent petitioner from pleading lack of means at a subsequent stage. Executing court ought to have recorded evidence regarding means and entered a finding when it was disputed at a later stage. It is also pointed out by learned counsel that there was no willful suppression of the order in C.R.P.No.747 of 2005 while C.R.P.No.124 of 2010 was moved. It happened that necessary instruction for filing C.R.P.No.124 of 2010 was given by the son of petitioner who was not aware of the decision in C.R.P.No.947 of 2005. C.R.P.NO.NO. 461 OF 2010 IN I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 3 Learned counsel for respondent contends that means has already been found there is nothing to show that petitioner later, lost his means for any reason whatsoever and that execution is continuing on the strength of the earlier finding regarding means which was confirmed in C.R.P.No.947 of 2005. 3. I do not dispute the proposition stated by learned counsel for petitioner that finding regarding means at some point of time cannot stand good for all times to come. But, here is a case where execution is continuing pursuant to the finding regarding means which this Court in C.R.P.No.947 of 2005 refused to interfere with. It is pertinent to note that this Court, in spite of its refusal to interfere with the finding regarding means was permitting petitioner to pay the amount in installments and specifically empowered the executing court to issue warrant of arrest in case there happened to be two consecutive defaults in payment of the installments. There was non compliance of the said order in C.R.P.No.947 of 2005 and hence the execution court is legally correct in issuing warrant of arrest. I am not persuade to think that, at this stage it was necessary for the executing court to conduct a further enquiry regarding means of petitioner. I therefore, find no reason to interfere with the impugned order. C.R.P.NO.NO. 461 OF 2010 IN I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 4 4. But when two conflicting orders of this Court on the same matter came to the notice of the executing court, propriety required that court to bring the matter to the notice of this Court and seek appropriate direction in the matter. 5. On the question whether there was any willful suppression of the order in C.R.P.No.947 of 2005, I accept the explanation offered by the petitioner in I.A.2177 of 2010 in C.R.P.No.124 of 2010. That application is accordingly, closed. 6. Learned counsel for petitioner requested for installment facility for payment of the balance amount due under the decree. Learned counsel states that some amount has already been paid after the order in C.R.P.No.947 of 2005. It is submitted by learned counsel that petitioner is a retired teacher aged 76 years and is getting a megre amount by way of pension. It is also submitted that petitioner has undergone two surgeries. Learned counsel made a fervent plea for permission to pay the amount in installments. I have heard learned counsel for respondent also in that regard. This Court had in C.R.P.No.947 of 2005 permitted petitioner to pay the amount in 30 (thirty) equal monthly installments. Having regard to the facts and circumstances stated by learned counsel for petitioner and on hearing the views of learned counsel for respondent, I am inclined to C.R.P.NO.NO. 461 OF 2010 IN I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 5 give petitioner facility to pay the amount in installments but, subject to conditions. 7. Resultantly, this revision is dismissed. But, petitioner is permitted to pay the amount due under the decree in installments subject to the following conditions: 1. Petitioner shall pay the amount due under the decree in thirty (30) monthly installments beginning from 01-10-2010 onwards. 2. The monthly payment shall not be less than Rs.25,000/- (Rupees Twenty five thousand only) provided that by the last installment the entire amount due shall be paid. 3. The amount shall be deposited in the executing court on or before the 5th (fifth) of every month. 4. It is made clear that in case of default in payment of any three (3) installments or the entire amount is not paid by 30 installments it will be open to the executing court to proceed with personal execution against petitioner without any further enquiry regarding means. C.R.P.NO.NO. 461 OF 2010 IN I.A.NO.2177 OF 2010 IN C.R.P.NO.124 OF 2010 6 The warrant of arrest issued against petitioner shall stand in abeyance during the said period of 30 (thirty) months beginning from 01- 10-2010 onwards or till default as stated in Cl.(4) above, whichever is earlier. THOMAS P JOSEPH,JUDGE. pm