IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29872 of 2009(O)
1. ACHUTHAN, S/O.LAKSHMANA MOOTHAN,
... Petitioner
Vs
1. K.SUNDARAM, S/O.KUNJAPPA,
... Respondent
2. RAJAN, S/O.CHITHAMBARA MOOTHAN,
For Petitioner :SRI.G.HARIHARAN
For Respondent :SRI.U.BALAGANGADHARAN
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :04/06/2010
O R D E R
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in the executing court which was withdrawn by respondent No.1.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