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.
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W.P.C.No.37849 of 2009
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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/-