IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP.No. 975 of 2005()
1. K.DIVAKARAN NAIR, RESIDING AT
... Petitioner
2. C.RAJEEVAN, RESIDING AT KOTTARAKUTH
Vs
1. UNION BANK OF INDIA, REPRESENTED BY
... Respondent
For Petitioner :SRI.P.A.HARISH
For Respondent :SRI.A.V.THOMAS
The Hon'ble MR. Justice K.T.SANKARAN
Dated :11/12/2008
O R D E R
K.T. SANKARAN, J.
.............................................
C.R.P. No. 975 OF 2005
...............................................
Dated this the 11th December , 2008
O R D E R
The judgment debtors are the revision petitioners. The
Execution Petition was filed for realization of a sum of Rs.
59,691/- and costs by arrest and detention of the judgment
debtors. Notice was issued in the Execution Petition. The
revision petitioners appeared and filed objections. They did not
raise any plea of no means. They only prayed that they may be
permitted to pay the decree debt in monthly instalments of Rs.
2,000/-. Apparently, the court below did not accept the request
for permitting them to pay the decree debt in instalments. It
would appear that the judgment debtors paid Rs.2,000/-.
However, they were directed to pay a sum of Rs.10,000/- per
month towards decree debt. That order was passed on
25.07.2005. The judgment debtors did not comply with that
order. On 24.08.2005, the judgment debtors paid Rs.2,000/-.
The court below passed the following order:
“Rs.2,000/- paid. Issue warrant to the judgment debtors.”
The order directing the judgment debtors to pay Rs.10,000/- per
C.R.P. No. 975 OF 2005
2
month as well as the subsequent order directing to issue warrant
of arrest are under challenge in this Revision.
2. Learned counsel appearing for the petitioners submitted
that after the petitioners entered appearance, on the next
posting date, the court below passed the order directing them to
pay a sum of Rs. 10,000/- per month. Thereafter, on the failure
of the petitioners to pay Rs.10,000/- per month, the court below
directed to issue arrest warrant against the judgment debtors.
Since there is no plea of no means by the judgment debtors, it is
not necessary to undertake an investigation of the means of the
judgment debtors. The court below has granted a breathing time
to the petitioners to pay the decree amount. In fact, an
indulgence was shown by the court below in favour of the
petitioners to pay the decree amount at the rate of Rs.10,000/-
per month. I am of the view that the order passed by the court
below is a benefit conferred on the petitioners. However, they are
very much aggrieved by that order because according to them,
the question whether they are liable to be arrested and detained
in civil prison is a mater to be considered by the court below after
C.R.P. No. 975 OF 2005
3
affording an opportunity of being heard to them. No such
enquiry was conducted by the court below. It is also pointed out
that the request to pay the decree debt in easy instalments was
not considered by the court below.
3. The court below could legally proceed with the Execution
Petition. It need not direct the judgment debtors to pay the
decree amount in instalments. If the decree is not complied
with, the execution shall be proceeded with. The court below
shall dispose of the Execution Petition, after affording an
opportunity of being heard to the petitioners. At the same time,
the direction to pay Rs.10,000/- is liable to be vacated. The
court below shall proceed in accordance with law and pass
appropriate orders in the Execution Petition, after affording an
opportunity of being heard to the petitioners.
The Civil Revision Petition is allowed in part in the manner
indicated above.
K.T. SANKARAN,
JUDGE.
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