IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 8TH JUNE 2010 / 18TH JYAISTHA 1932 WP(C).No. 17677 of 2010(O) -------------------------- E.P.No.66/2009 IN O.S.NO.62/2008 OF MUNSIFF MAGISTRATE COURT, PERINTHALMANNA PETITIONER/2ND RESPONDENT ----------------------------- KUNJIMOHAMMED C.K., S/O.MOIDUNNI HAJI, CHELAKKODAN HOUSE, ANGADIPPURAM AMSOM, DESOM, PERINTHALMANNA. BY ADV. SRI.P.SAMSUDIN RESPONDENT/PETITIONER/IST RESPONDENT ---------------------------------------- 1. SENIOR MANAGER, SOUTH MALABAR GRAMIN BANK, PERINTHALMANNA BRANCH, MALAPPURAM DISTRICT. 2. ABOOBACKER, S/O.THITHUMMA, VALALI KATTEKKAD HOUSE, ALIPPARAMBU AMSOM, DESOM, PERINTHALMANNA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- W.P.C.No.17677 of 2010 --------------------------------------- Dated this 08th day of June, 2010 JUDGMENT Petitioner, aged about 74 years stood as a guarantor for respondent No.2 for the loan the latter availed from respondent No.1 and as it usually happens respondent No.2 failed to repay the amount. Respondent No.1 filed suit against petitioner and respondent No.2 and obtained a decree 18-11-2008 for realisation of Rs.55,110/- with interest and cost. Respondent No.1 filed E.P.No.66 of 2009 for recovery of Rs.62,783/- and cost of Rs.9,175/-. Respondent No.2 is working abroad. According to the petitioner, respondent No.2 has sufficient assets and means to pay off the decree amount but respondent No.1/decree holder is not proceeding against him. The execution petition is directed against petitioner. He finds it difficult to raise the amount. He collected some amount from his children and paid Rs.30,000/-. Prayer in this writ petition is to call for records of the execution petition and set aside all proceedings therein or to grant 30 installments to the petitioner to pay the decree amount. 2. It is not shown on what account execution proceedings against the petitioner must be set aside. It is within the power of : 2 : respondent No.1 to elect to proceed against respondent No.2 or petitioner in so far as there is a decree which made petitioner and respondent No.2 jointly and severally liable to respondent No.1. Therefore, it cannot be insisted that respondent No.1 ought to have proceeded against respondent No.2 before proceeding against petitioner. Nor can this court without the consent of respondent No.1 allow payment of the amount in installments. Prayer for installment facility if any has to be made by petitioner in the executing court and persuade respondent No.1/decree holder to agree for payment in reasonable installments. This court cannot interfere in that matter. Having regard to the facts and circumstances, it is made clear that petitioner can make a request in the executing court for payment of the amount in installments and persuade respondent No.1/decree holder for the said purpose. With the above direction the writ petition is closed. (THOMAS P JOSEPH, JUDGE) Sbna/-