IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 4TH JUNE 2010 / 14TH JYAISTHA 1932 WP(C).NO. 29872 OF 2009(O) ----------------------------------------- AGAINST THE ORDER DATED IN EP 95/2006 IN OS.51/1991 OF PRINCIPAL SUB COURT, PALAKKAD .................... PETITIONER(S): ---------------------- ACHUTHAN, S/O.LAKSHMANA MOOTHAN, MOOTHANTHARA, KOPPAM AMSOM, PALAKKAD TALUK. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): ------------------------- 1. K.SUNDARAM, S/O.KUNJAPPA, PROPRIETOR, M/S.SUNDARAN RE-TREADING COMPANY SULTHANPETTA, PALAKKAD DISTRICT. 2. RAJAN, S/O.CHITHAMBARA MOOTHAN, SAKTHI NAGAR, MELAMURI, PALAKKAD DISTRICT. ADV. SRI.U.BALAGANGADHARAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE EXECUTION PETITION FILED BY THE FIRST RESPONDENT AS E.P. NO.95 OF 2006 IN O.S. NO.51 OF 1991 BEFORE THE SUB COURT, PALAKKAD. EXHIBIT P2 TRUE COPY OF THE COUNTER AFFIDAVIT DATED 10.1.2007 FILED BY THE PETITIONER BEFORE THE SUB COURT, PALAKKAD IN E.P. NO.95 OF 2006 IN O.S. NO.51 OF 1991. EXHIBIT P3 TRUE COPY OF THE ORDER DATED 23.09.2009 MADE IN E.P. NO.95 OF 2006 IN O.S. NO.51 OF 1991. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.29872 of 2009 ==================================== Dated this the 4th day of June, 2010 J U D G M E N T Petitioner is judgment debtor No.1 in E.P.No.95 of 2006 of the court of learned Sub Judge, Palakkad. Petitioner has suffered a decree for payment of Rs.48,765.50 with interest at the rate of 12% per annum from 23.01.1991 till realisation. Since amount due under the decree was not paid respondent No.1 has launched execution. As per Ext.P3, order executing court found that petitioner in spite of having sufficient means has neglected and refused to pay amount due under the decree. Accordingly arrest of petitioner was ordered. That order is under challenge in this Writ Petition. Learned counsel for petitioner contends that W.P(C) No.29872 of 2009 -: 2 :- petitioner has no sufficient means. Learned counsel requested that if at all Ext.P3 is sustained, petitioner may be given six months' time to pay of the amount due under the decree. 2. Pursuant to the order of this Court on 27.10.2009 petitioner has deposited Rs.50,000/- (Rupees Fifty thousand only) in the executing court which was withdrawn by respondent No.1. There was an order by this Court on 08.12.2009 extending stay on condition of petitioner depositing a further sum of Rs.50,000/- (Rupees Fifty thousand only) within four weeks from that date. It is admitted by both sides that the said order is not complied with. 3. So far as means of petitioner is concerned petitioner did not adduce any evidence. On the other hand respondent gave W.P(C) No.29872 of 2009 -: 3 :- evidence as P.W1 and produced Exts.A1 to A7. Exhibits A1 and A2 show that two stage carriages of petitioner were attached and released to respondent No.2 on kaichit. It is on the evidence on record that executing court has found that petitioner has sufficient means. On going through the order under challenge and hearing counsel on both sides I do not find reason to interfere with Ext.P3. 4. So far as request of petitioner for time for payment of balance amount is concerned I have heard learned counsel for respondent No.1 also. Having regard to the circumstances stated by learned counsel for petitioner I am inclined to grant five months' time to the petitioner to pay balance amount due under the decree to respondent No.1. W.P(C) No.29872 of 2009 -: 4 :- Resultantly, Writ Petition fails and it is dismissed. But petitioner is permitted to pay the balance amount due under the decree in five equal monthly installments commencing from 01.07.2010. In case of default in payment of any two installments it will be open to respondent No.1 to proceed with execution pursuant to Ext.P3, order without further enquiry regarding means of petitioner. Warrant of arrest against petitioner shall be kept in abeyance during the said period of five months or till default is committed by petitioner whichever is earlier. THOMAS P. JOSEPH, JUDGE. vsv