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Chandran vs Edakkalathur Chitties Loans (P) … on 24 May, 2010

Kerala High Court
Chandran vs Edakkalathur Chitties Loans (P) … on 24 May, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 37849 of 2009(O)


1. CHANDRAN, AGED 53 YEARS,
                      ...  Petitioner

                        Vs



1. EDAKKALATHUR CHITTIES LOANS (P) LTD.,
                       ...       Respondent

                For Petitioner  :SRI.C.HARIKUMAR

                For Respondent  :SRI.G.SREEKUMAR (CHELUR)

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :24/05/2010

 O R D E R
                  THOMAS P JOSEPH, J.

                 ----------------------------------------

                     W.P.C.No.37849 of 2009

                  ---------------------------------------

                Dated this 24th day of May, 2010

                            JUDGMENT

Judgment debtor No.2 in E.P.No.1945 of 2006 in O.S.No.05 of

2002 of the court of learned Additional Munsiff-II, Thrissur

challenges Ext.P2, order dated 30-09-2009 issuing warrant to him

on the finding that he has sufficient means to discharge the debt

but he has wilfully failed to do so. Respondent/decree holder filed

execution petition for realisation of Rs.1,04,382/- with future

interest and cost and sought personal execution against

petitioner/judgment debtor No.2. Judgment debtor No.1, the

principal debtor is the wife of judgment debtor No.3. Petitioner is

a sanitation worker in Thrissur corporation. Representative of the

respondent gave evidence as PW1 and stated about the means of

petitioner. He stated that petitioner is drawing Rs.7,000/- per

month as salary and has 3 cents of land. Petitioner gave evidence

as RW1 and stated that he is getting a salary of Rs.2,000/- only and

that he is indebted to the Service Co-operative Bank for more than

Rs.4,00,000/-. His salary was attached by this court towards the

decree in this case for 24 months at the rate of Rs.1,000/- per

month. He produced Ext.B5, pay slip which shows that he is

W.P.C.No.37849 of 2009
: 2 :

getting Rs.4,432/- per month. Executing court found that petitioner

has sufficient means and ordered warrant.

2. What is required to be proved is sufficient means for

petitioner to discharge the liability. It is not as if he must be in a

possession of liquid cash to discharge the liability. It is not

disputed that petitioner has 3 cents of land and is employed. The

deductions from his salary for his personal purpose cannot be

ignored while considering his means. The executing court

considered the evidence on record and found that petitioner has

sufficient means to discharge the liability. I do not find any

manifest error in the order under challenge requiring interference

by this court.

3. At this stage, without prejudice by the contentions

raised by petitioner learned counsel requested that petitioner may

be permitted to discharge the decree debt in twenty installments. I

have heard learned counsel for respondents on that request of

petitioner. Having regard to the circumstances stated by learned

counsel for petitioner I am inclined to permit petitioner to

discharge the decree debt in fifteen equal monthly installments

beginning from 01-06-2010 .

W.P.C.No.37849 of 2009
: 3 :

Resultantly, the writ petition is disposed of in the following

lines:

(i) Petitioner is permitted to discharge

the decree debt in fifteen (15) equal monthly

installments beginning from 01-06-2010 .

Petitioner will get time till 15-06-2010 to make

payment of the first installment due on 01-06-

2010. The second installment onwards will fall

due on the first of the succeeding month.

(ii) It is made clear that if there is any two

default in payment of the amount, it will be open

to the decree holder to seek revival of the

execution petition and proceed with execution

personally against the petitioner pursuant to

Ext.P2, order without further proof of means.

(3) It will be open to the court below to

close the execution petition for the time being in

view of the above direction as if there is stay

against Ext.P2, order.

(THOMAS P JOSEPH, JUDGE)

Sbna/-

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