IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 RSA.No. 341 of 2010() ------------------------------- AS.244/2008 of II ADDL. DISTRICT COURT, PALAKKAD OS.710/2006 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT/APPELLANT/DEFENDANT --------------------------------------------------------- R. VIJAYAKUMARAN, S/O.RAMAKRISHNAN EZHUTHASSAN, RESIDING AT NAMPILLY HOUSE, EDAYANKULAMBU, PATTANCHERRY, VANDITHAVALAM, CHITTUR,PALAKKD. BY ADV. SRI.H.BADARUDDIN, SMT.B.SHAMEERA, SRI.T.T.SUDHEESH. RESPONDENT/RESPONDENT/PLAINTIFF. ----------------------------------------------------------- V. KUNCHAPPAN, S/O.GOVINDAN EZHUTHASSAN, RESIDING AT 'SREERANJINI', ANDIMADAM, AKATHETHARA, PALAKKAD TALUK. BY ADV. SRI.P.K.MOHANAN(PALAKKAD). THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15/07/2010, ALONG WITH RSA NO.929 OF 2003, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: RSA.No. 341 of 2010 ORDER ON I.A. NO.854/2010 IN RSA NO.341/2010 DISMISSED 15/07/2010. SD/- P.BHAVADASAN, JUDGE. //TRUE COPY// P.S. TO JUDGE rs. P.BHAVADASAN, J. ------------------------------------- RSA No.341 of 2010-G ------------------------------------- Dated 15th July 2010 Judgment Undaunted by the concurrent findings against him, the defendant in OS No.710/06 before the Munsiff's Court, Palakkad has come up in appeal before this Court. The parties and facts are hereinafter referred to, as they are arrayed before the Trial Court. 2. The suit is one for money. According to the plaintiff, the defendant borrowed a sum of Rs.65,000/- from him on 01.02.2005 after executing Ext.A1 document. The defendant had agreed to repay the said amount within four months, but he failed to repay the amount, inspite of repeated demands. When the money was not repaid, the suit was laid. 3. The defendant resisted the suit on several grounds. He denied having received the amount from the plaintiff. According to him, he had purchased 10 cents of RSA 341/0 2 land with a house therein, from the plaintiff. He claimed that he was not liable to pay any amount to the plaintiff. He, therefore, prayed for dismissal of the suit. 4. The Trial Court raised necessary issues for consideration. The evidence consists of the testimony of PWs 1 and 2 and documents marked as Exts.A1 to A2(b) from the side of the plaintiff. The defendant examined DW1. No document was marked from the side of the defendant. Ext.C1 was marked as court exhibit and Exts.X1 and X2 were marked as third party exhibits. 5. On a consideration of the materials before it, the Trial Court found that the claim put forward by the plaintiff was true and accordingly granted a decree in his favour. The defendant carried the matter in appeal. The first Appellate Court concurred with the Trial Court and dismissed the appeal. Hence the Second Appeal. 6. The main ground taken in this appeal is that the document involved in the proceedings is a bond and therefore, the said document is invalid in law. So, it is RSA 341/0 3 submitted that no liability could be fastened on him on the basis of Ext.A1. 7. Both the courts below have negatived the above contention and held that Ext.A1 cannot be construed as a bond and it can only be construed as an acknowledgment of liability of a pre-existing debt. The document by itself does not create a liability. The findings of the courts below are only just and proper. No grounds are made out warranting interference with the findings of the courts below. 8. Faced with the above situation, the learned counsel for the appellant prayed that he may be given an opportunity to pay the decree debt in instalments. He submitted that the execution has already been taken out and his salary is under attachment. Therefore, he prays that the attachment may be kept in abeyance and he may be allowed to pay the balance decree amount in instalments. RSA 341/0 4 9. The above prayer seems to be just and proper. Accordingly, while confirming the Judgment and decree of the lower Appellate Court, the attachment of properties of the appellant shall be kept in abeyance subject to the condition that he pays the balance decree amount in intalments of Rs.5,000/- per month on or before the 10th of every month, commencing from the 10th of August 2010. If the appellant defaults in payment of any one of the instalments, the attachment shall revive. Subject to the above directions, the appeal is dismissed. There will be no order as to costs. P.BHAVADASAN, JUDGE sta RSA 341/0 5