IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 22ND DECEMBER 2010 / 1ST POUSHA 1932 WP(C).NO. 9422 OF 2010(O) ---------------------------------------- AGAINST THE ORDER IN ARC 1600/2004 IN EP.131/2007 OF PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ----------------------- SUDHIR KUMAR.S, S/O.SUKUMARAN, MANNATHUKAVU, THANNISSERY P.O., PALGHAT. BY ADV. SRI.T.M.SUNIL RESPONDENT(S): --------------------------- THATHAMANGALAM SERVICE CO-OPERATIVE BANK LTD.NO.P 502, REPRESENTED BY ITS SECRETARY, THATHAMANGALAM, CHITTUR, PALGHAT. ADV. SRI.GEORGE POONTHOTTAM THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: --------------------------------- EXHIBIT P1 TRUE COPY OF EXECUTION PETITION NO.131 OF 2007 ON THE FILE OF THE SUBORDINATE JUDGES COURT, PALAKKAD. RESPONDENT'S EXHIBITS: ----------------------------------- EXHIBIT R1(A) TRUE COPY OF THE OBJECTIONS FILED BY THE PETITIONER TO THE RULE 37 NOT8ICE. EXHIBIT R1(B) TRUE COPY OF THE ORDER PASSED UNDER ORDER 21 RULE 38 DATED 8.2.2010 IN E.P. NO.131 OF 2007. TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.9422 of 2010 ==================================== Dated this the 22nd day of December, 2010 J U D G M E N T Petitioner has suffered an award for payment of money to the respondent in ARC No.1600 of 2004. Since the award was not satisfied respondent initiated execution proceeding in the court of learned Sub Judge, Palakkad by filing E.P. No.131 of 2007 and requested personal execution against petitioner alleging that in spite of having sufficient means petitioner has refused or neglected to pay the amount due under the award. Though prayer for issue of warrant was resisted by petitioner, learned Sub Judge as per Ext.R1(b), order dated February 2, 2010 found that petitioner in spite of having sufficient means has failed to pay and ordered warrant of arrest against the petitioner. That order is under challenge in this petition. It is contended by learned counsel that learned Sub Judge had no authority, and at any rate there is no affidavit in support of the application for issue of arrest warrant against petitioner. Alternatively it is contended that petitioner may be permitted to pay the amount in installments. Learned counsel for respondent has supported the impugned order. W.P(C) No.9422 of 2010 -: 2 :- 2. That, there is an award against the petitioner is not disputed before me. Rule 72 of the Co-operative Societies Rules (for short, “the Rules”) provides for execution of decisions, awards or orders and under Rule 72(2) the Registrar has the authority, on receipt of an application under clause (1) of the said Rule to issue a certificate based on which the party is enabled to apply for execution and launch execution before the Collector or a civil court of competent jurisdiction. A learned Single Judge of this Court in Thomas v. State of Kerala (2010 [4] KLT 909) referring to Rule 84 of the Rules held that 'court' mentioned therein is the civil court. In view of the said provision the contention that the award is not executable before the civil court cannot be accepted. 3. Next argument is that there is no affidavit in support of the allegation that petitioner, in spite of having means refused or neglected to pay the amount. Order XXI of the Code of Civil Procedure (for short, “the Code”) does not require an affidavit to be filed in support of the allegations. What Rule 11(2) of Order XXI of the Code requires is only that the written application for execution should state the mode in which assistance of the court is required to execute the decree whether it is “by the arrest and W.P(C) No.9422 of 2010 -: 3 :- detention in prison” or such other modes as is provided. The decree holder, if he wishes execution by arrest and detention has to prove the conditions prescribed in the proviso to Section 151 of the Code. Filing of an affidavit by the decree holder is not mandatory. Learned Sub Judge has referred to the evidence let in by P.W.1, examined on behalf of respondent regarding means of petitioner in paragraph 7 of the order. It is seen that apart from the oral evidence of P.W.1 relevant documents are also produced to show that petitioner has landed property. Exhibit A1 is the certificate issued by the Village Officer stating that petitioner owns 0.1363 hectares of land and a residential building. He also owns property in Koduvayoor Village as revealed from Ext.A1. Exhibit A2 is the certified copy of partition deed No.304 of 2004 as per which petitioner was allotted landed properties at Thanissery in Elappully. Thus it is based on sufficient evidence that court below found in favour of means of petitioner. That finding is based on evidence and does not require interference. 4. What remained is only whether petitioner should be given time to pay the amount in installments. It is submitted that petitioner is not able to raise the entire amount in lump. Learned counsel submitted that there is some dispute as to the W.P(C) No.9422 of 2010 -: 4 :- amount actually due after payment of some amount. But that is a matter which the executing court has to decide. Having regard to the facts and circumstances of the case I find no reason to interfere with the impugned order. But I am inclined to grant six months' time to the petitioner from 15.01.2011 to pay the amount due under the award. The executing court may also decide what exactly is the amount due to the respondent as per the award if any such question is raised. Original Petition is dismissed. But petitioner is granted six months' time from 15.01.2011 to pay the amount due under the award. Warrant of arrest issued to the petitioner will stand in abeyance during the said period of six months subject to the following conditions: (i) Petitioner shall deposit in the executing court for payment to the respondent the amount due under the award in six equal monthly installments beginning from 15.01.2011 provided that by the last installment the entire amount due under the award shall be deposited. W.P(C) No.9422 of 2010 -: 5 :- (ii) The deposit above stated shall be made on or before the 15th of every month and in case that day happens to be a holiday, deposit shall be made on the next working day. (iii) In case of default in deposit of any installment or the entire amount is not deposited within the time granted hereby, it will be open to the respondent-decree holder to proceed against petitioner personally pursuant to Ext.R1(b), order without any further enquiry regarding means of petitioner. THOMAS P. JOSEPH, JUDGE. vsv