IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 16TH DECEMBER 2011 / 25TH AGRAHAYANA 1933 OP(C).No. 4140 of 2011(O) ------------------------- AGAINST THE ORDER IN EP 249/2010 IN OS.149/2008 of ADDL.SUB COURT,NORTH PARAVUR .................... PETITIONER: ---------------------- A.V.CHANDRAN, S/O.VELAYUDHAN, ARUMAKKATTUKUDY HOUSE, KALADY KARA, KALADY VILLAGE. BY ADVS. SRI.ASP.KURUP, SRI.SADCHITH.P.KURUP. RESPONDENT(S): --------------------------- PERINGOTTUKARA NAMBOODIRI YOGA KSHEMA SABHA, ANTHICAD REPRESENTED BY ITS SECRETARY, PIN - 680 641. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OPC.NO.4140/2011 O APPENDIX PETITIONER'S EXHIBITS: EXHIBIT.P1: TRUE COPY OF EXECUTION PETITION DT.NIL FILED BY RESPONDENT BEFORE ADDL.SUB COURT NORTH PARAVUR IN O.S.149/2008. EXHIBIT P2: TRUE COPY OF OJECTION DT.1/11/2010 FILED BY PETITIONER IN E.P.NO.249/2010 IN O.S.149/2008. EXHIBIT.P3: TRUE COPY OF AFFIDAVIT DT.7/72011 FILED BY RESPONDENT IN E.P.249/2010 O.S.NO.149/2008. EXHINIT.P4: TRUE COPY OF COUNTER AFFIDAVIT DT.8/8/2011 FILED BY PETITIONR IN E.P. 249/2010 IN O.S. 149/2008. EXHIBIT.P5: TRUE COPY OF ORDER DT.19/10/2011 PASSED BY ADDL.SUB COURT NORT PARAVUR IN E.P.249/2010 IN O.S.NO.149/2008. RESPONDENTS' EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.4140 of 2011 ==================================== Dated this the 16th day of December, 2011 J U D G M E N T Petitioner is the second judgment debtor in O.S. No.149 of 2008 of the court of learned Additional Sub Judge, North Paravur. Respondent obtained a decree for money against petitioner and others and launched execution. Personal execution against petitioner was sought alleging that in spite of means he has not paid the amount due under the decree. Petitioner denied plea of means. Respondent examined P.W.1 to prove means of petitioner. P.W.1 stated that petitioner is running Sakthi Automobiles and owns 12 cents and a building. Petitioner in his evidence as D.W.1 admitted that about four years back he was running Sakthi Automobiles but closed down the same as it went on a loss. He however did not adduce documentary evidence to show that he has closed down the said business. So far as landed property owned by petitioner is concerned, though initially he had not denied the suggestion that he owns 12 cents, later, he pleaded that he owns only 6 cents and a building. It is argued by learned counsel that there is no evidence to show that petitioner is O.P(C) No.4140 of 2011 -: 2 :- running Sakhti Automobiles and that the six cents and building is capable of getting income. 2. So far as the business is concerned it is admitted that about four years back petitioner was running Sakthi Automobiles. Petitioner did not adduce evidence to show that he has stopped that business. P.W.1 has given evidence that petitioner is still doing that business. There is no reason to disbelieve him. 3. Assuming that petitioner has only six cents and building, it is not as if the said property is not capable of generating income. In Kuppuswamy v. P.G. Menon (1992(2) KLT 203) this Court held that when it is shown that judgment debtor owns or possesses a house or has got interest therein the normal presumption is that he is able to pay the debt either by sale or mortgage or creating other encumbrance over the house. In such circumstance it is open to the judgment debtor to rebut the presumption and prove either that he has not owned or possessed a house or that no alienation or encumbrance of that property is possible. No such evidence is forthcoming in this case. Therefore I am inclined to hold that petitioner is capable of generating income from whatever assets O.P(C) No.4140 of 2011 -: 3 :- he has as admitted by him. In that view of the matter I do not finding reason to interfere with the impugned order. 4. However, I am inclined to give opportunity to petitioner to request learned Munsiff to give installment facility to pay the amount due under the decree. Hence I am inclined to keep the warrant if any issued against petitioner in abeyance for some time. Resultantly, Original Petition is disposed of as follows: (i) While no interference is required with Ext.P5, order petitioner is permitted to request the executing court facility to pay the amount under the decree in installments and if any such request is made the executing court shall decide the same after hearing respondent also. (ii) It is directed that warrant of arrest if any issued against the petitioner will stand in abeyance for a period of one month this day subject to the condition that petitioner pays/deposits in the executing court for payment to the respondent O.P(C) No.4140 of 2011 -: 4 :- Rs.20,000/- (Rupees Twenty thousand only) within three weeks from this day. (iii) In case the above condition is not complied it will be open to the executing court to proceed pursuant to Ext.P5, order. THOMAS P. JOSEPH, JUDGE. vsv