IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 21433 of 2010(O) -------------------------- AGAINST THE ORDER DATED 22/06/2010 IN EP 14 /2009 IN OS.285/1999 of MUNSIFF COURT, PALA .................... PETITIONER: --------------- THOMAS, S/O. THOMAS, PUTHIYEDATHU HOUSE, NEELOOR KARA KADANADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DIST. BY ADV. SRI.M.N.SANJITH SRI.JAISON JOSEPH RESPONDENT: --------------- RAJAPPAN, S/O. ANANDAN, KARIMARTHUMKAL, KADANADU KARA, KADANADU VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. ------------------------------------------- WP (C) No. 21433 of 2010 ------------------------------------------- Dated this the 12th day of July, 2010 J U D G M E N T --------------------- Judgment debtor in E.P No. 14/09 in O.S No.289/99 challenges Exhibit P7, order of learned Munsiff, Pala holding that petitioner has sufficient means to pay the decree debt but is neglecting to pay the amount. It started on an agreement executed by petitioner in favour of respondent for sale of 53.6 ares of land for a total consideration of Rs.7,25,000/- (Rupees Seven lakh twenty five thousand only). Petitioner received certain amount by way of advance. Alleging that he did not perform his part of the contract respondent filed suit against petitioner for return of advance money. That resulted in a decree in favor of respondent. Petitioner has come with a contention that he has no means to pay the amount. He also claimed that he is suffering from back pain. 2 WP (C) No. 21433 of 2010 2. Respondent gave evidence as PW1 and stated to the means of petitioner. Petitioner was examined as DW1. He stated that he has disposed of the property which was subject matter of the agreement for sale. He utilized the sale proceedings to discharge certain other liabilities. He also claimed that he is suffering from back pain and is unable to move about. The physician who issued Exhibit X1, Medical certificate was examined as DW2. Execution court rejected evidence of DW1 and 2 and found that petitioner has sufficient means. It is contended by learned counsel that finding of the Court below is not correct. According to the learned counsel there is no evidence that presently petitioner has means to pay the decree amount. 3. DW2, physician, stated that he treated the petitioner for disk complaint and for the said purpose issued Exhibit X1. Treatment was at his residence. Apart 3 WP (C) No. 21433 of 2010 from Exhibit X1, no other document has been produced by petitioner to prove his alleged illness or treatment. In the circumstance, plea of illness stated by petitioner cannot be accepted. 4. According to the petitioner he is presently residing with wife and children in a plot having 2-3 acres in extent mainly cultivated with rubber. Petitioner claimed that the said property belonged to his wife and that his wife and father-in-law disliked his staying in that house. No document is produced to show that the said property belonged to the wife of petitioner. Assuming that the said property belonged to the wife of petitioner, it is not disputed that property which was subject matter of agreement for sale and which belonged to the petitioner was, after the agreement for sale disposed of and petitioner got the sale consideration. Even as per the agreement for 4 WP (C) No. 21433 of 2010 sale, consideration was Rs.7,25,000/-(Rupees Seven lakh twenty five thousand only) and as per version of petitioner as DW1 he sold that property for Rs.6,25,000/- (Rupees Six lakh twenty five thousand only). It is not as if petitioner was not having the means. He could have discharged the liability then. 5. This Court in Kuppu Swami Vs. P.G. Menon (1992 (2) KLT 203) has stated that it is not necessary that decree holder should adduce evidence regarding all details of source of income of judgment debtor. If some evidence regarding income is produced, it is for judgment debtor to controvert that. Evidence of petitioner as DW1 is not sufficient to controvert evidence produced by the respondent. As such I do not find reason to interfere with the order under challenge. 5 WP (C) No. 21433 of 2010 6. Learned counsel requested that petitioner may be granted some time to discharge the liability. Considering the facts and circumstances, I am inclined to give petitioner two months time from this day to discharge the liability. Resultantly, this writ petition is disposed in the following lines:- 1. It is directed that warrant of arrest issued to the petitioner will stand in abeyance for a period of two months from this day subject to the following conditions. a. Petitioner shall deposit in the executing Court for payment to the respondent of Rs. 25,000/-(Rs. Twenty 6 WP (C) No. 21433 of 2010 five thousand only) within three weeks from this day. b. Petitioner shall deposit the balance amount due under decree in the execution court within two months from this day. 2. Incase of non compliance with either of the above conditions it will open to the executing court to proceed with personal execution against petitioner pursuant to Exhibit P7, order without any further enquiry regarding his means. THOMAS P. JOSEPH, JUDGE. rkc