IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 29TH NOVEMBER 2011 / 8TH AGRAHAYANA 1933 CRP.No. 538 of 2011 ----------------------------- [THE ORDER DATED 4/8/2011 IN E.P.NO.314/2010 IN OS.NO.147/2002 OF PRINCIPAL SUB COURT,KOTTAYAM] .................... REVISION PETITIONER/RESPONDENT/JUDGMENT DEBTOR: -------------------------------------------------------------------------------------- JOSEPH N.M @ APPACHAN, S/O. MATHEW, NANTHIKATTU HOUSE, INCHIYANIKARA, EDAKUNNAM VILLAGE. BY ADV. SRI.T.M.ABDUL LATHEEF. RESPONDENTS/PETITIONERS/DECREE HOLDERS: ------------------------------------------------------------------------- 1. ELSAMMA GEORGE, W/O. GEORGE, OOZHIKATTU HOUSE, INCHIYANIKARA, MUNDAKAYAM VILLAGE - 686 513. 2. MANU GEORGE, S/O. GEORGE, OOZHIKATTU HOUSE, INCHIYANIKARA, MUNDAKAYAM VILLAGE - 686 513. 3. NEENU GEORGE, D/O. GEORGE, OOZHIKATTU HOUSE, INCHIYANIKARA, MUNDAKAYAM VILLAGE - 686 513. 4. NITHIN GEORGE, S/O. GEORGE, OOZHIKATTU HOUSE, INCHIYANIKARA, MUNDAKAYAM VILLAGE - 686 513. BY THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 29/11/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Prv. THOMAS P.JOSEPH, J. ==================================== C.R.P. No.538 of 2011 ==================================== Dated this the 29th day of November, 2011 O R D E R Petitioner, judgment debtor in E.P. No.314 of 2010 in O.S. No.147 of 2002 of the court of learned Principal Sub Judge, Kottayam challenges the order passed by the executing court finding means of petitioner and issuing warrant of arrest. 2. Respondents filed the suit for recovery of compensation alleging that petitioner murdered their predecessor- in-interest. Trial court granted a decree in favour of respondents. Petitioner challenged that judgment and decree in R.F.A. No.416 of 2010 which is pending decision. Though this Court granted stay of execution of the decree on condition that petitioner furnished security for the amount due under the decree, for some reason or the other, petitioner did not comply with the said order and in the absence of stay executing court proceeded with execution of the decree. Respondents wanted personal execution against petitioner and adduced evidence through P.Ws.1 and 2 and marked Exts.A1 to A6. Petitioner gave evidence as D.W.1 and marked Exts.B1 series and B2. Executing court from the evidence C.R.P. No.538 of 2011 -: 2 :- found that petitioner has means and issued warrant of arrest. That order is under challenge. 3. In this proceeding learned counsel for petitioner contends that there is no sufficient evidence to hold that petitioner has sufficient means and in the circumstances issue of warrant against him was not warranted. 4. On going through the order under challenge it is seen that evidence disclosed that petitioner had transferred about 8 acres of rubber estate belonging to him and a spacious house situated therein in favour of his daughter as per Ext.A1, on 12.05.2000 (pending the suit). Petitioner in his evidence stated that he is selling about 7 kgs of rubber per day. It is also came out in evidence that petitioner is using a car for his journey, one of his sons is working abroad and that petitioner has recently conducted a tour of the foreign countries. Yet another fact the executing court noted is that though Ext.A1, document was executed in favour of petitioner's daughter in respect of 8 acres, that too, during the pendency of the suit, the said property is in the possession of petitioner as revealed from Ext.A3, certificate issued by the local authority and other documentary evidence produced before the executing court. C.R.P. No.538 of 2011 -: 3 :- 5. Learned counsel contended that there is no finding entered by the executing court that the transfer was made to defeat the execution of the decree. Assuming that learned Sub Judge has not stated so in so many words, I must bear in mind that it is pending suit that about 8 acres of land belonging to the petitioner was transferred in favour of his daughter and as Ext.A3, shows petitioner continues to be in possession of the said property and is selling about 7kgs of rubber (obviously collected from the said property) per day. In the circumstances I do not find reason to interfere with the finding entered by the executing court regarding means of petitioner. 6. But having regard to the alternative prayer made by petitioner I am inclined to permit petitioner to request the executing court for installment facility and to facilitate that, I am inclined to grant some time to the petitioner. Resultantly, Original Petition is disposed of as follows: (a) Petitioner is permitted to request the executing court facility to pay the amount due under the decree in installments. If any such such request is made the executing court shall decide on that C.R.P. No.538 of 2011 -: 4 :- question after hearing the respondents as well. (b) Warrant of arrest issued to petitioner will stand in abeyance for a period of one month from this day subject to the condition that petitioner pays/deposits in the executing court for payment to the respondents Rs.25,000/- (Rupees Twenty five thousand only) within two weeks from this day. (c) In case the above condition is not complied it will be open to the executing court to proceed with the execution proceedings pursuant to the finding regarding means. Needless to say that this order will be subject to any order that the appellate court may grant staying execution of the decree. THOMAS P. JOSEPH, JUDGE. vsv