IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 OP(C).No. 1393 of 2011(O) ------------------------- AGAINST THE ORDER IN EP 51/2010 IN OS.123/2008 of SUB COURT,NEYYATTINKARA .................... PETITIONERS/JUDGMENT DEBTORS/DEFENDANTS: ------------------------------------------------------------------------------ 1. T.THANKARAJAN, S/O.PONNUMUTHAN NADAR, VARUVILA VEEDU, KOTTACHAL, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. 2. S.P.REJITHKUMAR, S/O.G.SIVAPRASAD, SAROJA BHAVAN, PULLANTHERI, KARAKKONAM.P.O., NEYYATTINKARA, THIRUVANANTHAPURAM. 3. K.B.PRABODH, S/O.BHASKARA PANICKER, PROPRIETOR, VIGNESWARA STORES AND COOL BAR, KARAKKONAM, RESIDING AT BHASIKHAR, KARAKKONAM.P.O., NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): DECREE HOLDER/PLAINTIFF: ------------------------------------------------------------------------- STATE BANK OF TRAVANCORE, DHANUVACHAPURAM BRANCH, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY ITS MANAGER. THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2011 ALONG WITH OPC.NO.1394 OF 2011 AND OPC.NO.1395 OF2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss OP(C) NO.1393/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.123/2008 ON THE FILE OF THE SUB COURT, NEYYATTINKARA. P2: COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONERS IN O.S.NO.123/2008 ON THE FILE OF THE SUB COURT, NEYYATTINKARA. P3: COPY OF THE EX-PARTE JUDGMENT DTD. 4/11/2008 IN O.S.NO.123/2008 FROM THE FILE OF THE SUB COURT NEYYATTINKARA. P4: COPY OF THE OBJECTION FILED BY THE PETITIONERS IN E.P.NO.51/2010 IN O.S.NO.123/2008 ON THE FILE OF THE SUB COURT, NEYYATTINKARA. P5: COPY OF EA.NO.614 OF 2010 IN E.P.NO.51 OF 2010. P6: COPY OF THE AFFIDAVIT DTD. 06/04/2010 ON BEHALF OF THE RESPONDENT TO PROVE THE MEANS OF THE PETITIONERS. P7: COPY OF THE B DIARY IN E.P.NO.51 OF 2010 IN O.S.NO.123 OF 2008 ON THE FILE OF THE SUB COURT, NEYYATTINKARA. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss THOMAS P.JOSEPH, J. ==================================== O.P(C) No.1393, 1394 & 1395 of 2011 ==================================== Dated this the 11th day of July, 2011 C O M M O N J U D G M E N T Though, these Original Petitions arise from separate orders passed by the executing court, since the request made is the same these Petitions are being disposed of by this common judgment. 2. Petitioners are judgments debtors in E.P. Nos.51 of 2010, 15 of 2010 and 52 of 2010 in O.S. No.123 of 2008, 119 of 2008 and 120 of 2008 respectively, of the court of learned Sub Judge, Neyyattinkara. First respondent has obtained a decree for recovery of around Rs.3 lakhs with interest and costs in each case and launched execution for recovery of the amount by personal execution against petitioners. Executing court found that petitioners, in spite of having sufficient means refused to pay the decree amount and accordingly issued warrant of arrest to them for their detention in civil prison. 3. Though several contentions are urged in these O.P(C) Nos.1393, 1394 & 1395 of 2011 -: 2 :- petitions at the time of hearing learned counsel for petitioners has confined his submission to a request to permit petitioners pay the amount due under the decree in installments. It is pointed out that petitioners are petty traders and that the loans were sanctioned to the first petitioner in these cases on Traders Special Loan Scheme. It is also submitted that as directed by this Court in these petitions certain amounts have already been deposited in the executing court in two of the cases. On account of financial difficulties petitioners could not deposit the amount as directed in O.P(C) No.1395 of 2011. I have heard learned counsel for petitioners and respondent on the request of petitioners. 4. As regards the prayer for installment facility learned counsel for respondent submitted that in case this Court is inclined to grant installment facility petitioners may be directed to deposit Rs.50,000/- per month in each case. 5. Having heard counsel on both sides, considering the difficulties stated by petitioners and taking into account the amount payable as per the decrees I am inclined to O.P(C) Nos.1393, 1394 & 1395 of 2011 -: 3 :- permit petitioners to discharge the entire amount due under the decrees in 12 (twelve) equal monthly installments beginning from 01.08.2011 provided that by the last installment the entire amount due under the decrees is paid. Original Petitions are disposed of in the following lines: (a) Petitioners are permitted to pay the entire balance amount due under the decrees in O.S. No.119, 120 and 123 of 2008 of the court of learned Sub Judge, Neyyattinkara in 12 (twelve) equal monthly installments beginning from 01.08.2011 provided that by the last installment the entire amount due in each case is paid. (b) In case of default in making payment of any two installments (in each case) it will be open to the respondent to proceed with execution in the case in which default is committed, based on the O.P(C) Nos.1393, 1394 & 1395 of 2011 -: 4 :- finding regarding means without any further enquiry regarding means of petitioners. (c) Warrant of arrest issued to the petitioners in the said cases will stand in abeyance during the said period of 12 (twelve) months or till default as above stated is committed, whichever is earlier. (d) The amount shall either be paid to the respondent directly or deposit in the executing court for payment to the respondent on or before 5th of every calendar month and in case 5th day of the month happens to be a holiday, amount shall be paid/deposited on the next working day. THOMAS P. JOSEPH, JUDGE. vsv