IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 16084 of 2008(M)
1. KRISHNAN NADAR, S/O PONNU NADAR,
... Petitioner
Vs
1. L.VIJYAKUMAR, KUTHIRAVATTOM,
... Respondent
For Petitioner :SRI.R.S.KALKURA
For Respondent :SRI.K.B.PRADEEP
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :08/02/2010
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C) No.16084 of 2008
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Dated this the 8th day of February, 2010
JUDGMENT
Judgment debtor in E.P.No.316/06 in O.S.No.124/05 on the file of the Sub Court,
Thiruvananthapuram has filed this writ petition. Ext.P5
order passed by the learned Sub Judge directing issue of
warrant against him for realisation of the decree debt,
negativing his plea of no means, is challenged in this writ
petition.
2. The learned Munsiff, after examining the
materials produced by both sides, the decree holder and
the judgment debtor, came to the conclusion that the
petitioner/judgment debtor has means to pay the decree
debt and thereupon ordered for issuing warrant against
him. Propriety and correctness of that order, Ext.P5, is
impeached invoking the visitorial jurisdiction vested in
this court under Article 227 of the Constitution of India.
3. I heard the counsel on both sides. No material
whatsoever has been produced by the decree holder to
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show that the petitioner/judgment debtor since the date
of the decree has the means to pay the amount of the
decree or a substantial portion thereof and has refused or
neglected to pay the same, is the submission of the
learned counsel for the judgment debtor. Relying on
Ramatheerthan v. R.T.O. Trivandrum {1980 K.L.T.
374}, the learned counsel for the judgment debtor
contended that only in a case where it is established that
the judgment debtor proceeded against in execution of a
decree has means or has money to pay the decree debt, a
warrant for his arrest can be issued by the Civil Court.
The execution court, without adverting to that essential
factor, which has to be satisfied in the issue of a warrant
against the judgment debtor ,has passed Ext.P5 order,
which, according to the learned counsel, is liable to be
interfered with, exercising the extraordinary jurisdiction
vested with this court. On the other hand, decree holder
submitted that the petitioner/judgment debtor was a
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permanent employee in the Agricultural College,
Vallayani, Thiruvananthapuram and after his retirement
he is profitably engaged as a document writer. He has a
document writer’s licence and he is attending the office of
a licensed document writer as borne out by his own
admission on examination before the court below,
according to the learned counsel. After his retirement, he
has also collected his gratuity and pensionary benefits, a
substantial sum, is the case of the decree holder, which,
however, is disputed by the learned counsel for the
petitioner.
4. Perusing Ext.P5 order, it is seen that both the
decree holder and also judgment debtor got themselves
examined to substantiate the rival case canvassed by
them before the execution court. The learned Munsiff,
who had opportunity to watch the demeanour of the
witnesses found, the testimony of the decree holder
reliable and convincing. Admittedly the judgment debtor
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is a retired farm labourer in Agricultural College. He is
attending to a document writer’s office and engaging
himself as a document writer. He possesses a licence for
writing document for presentation before the Registrar’s
Office. It is a circumstance indicating that he is getting
income which is more than sufficient to meet his
livelihood. Apart from his engagement as a document
writer, being a retired farm labourer from a Government
institution, he could be expected to collect his pension as
well. In that factual backdrop, the plea of ‘no means’
canvassed by the said judgment debtor can never be
accepted. Further more, the burden cast upon the decree
holder, when a plea of ‘no means’ is raised to resist the
execution of a decree is very little. He need only assert
that the judgment debtor is possessed of sufficient means;
and, when he has mounted the box and given evidence
challenging the plea of ‘no means’ by the judgment
debtor, the burden shifts on the judgment debtor to
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establish that he lacks ‘means’ to pay the decree debt.
On the materials placed and the circumstances presented,
the conclusion formed by the learned Munsiff that the
judgment debtor is possessed of the means and, still,
defaulted payment is unassailable.
5. Learned counsel for the judgment debtor
requested for an opportunity to discharge the decree debt
in instalments. No doubt, in execution proceedings over
a money decree, plea for discharge of the decree debt in
instalments can be granted only with the approval of the
decree holder. Counsel for the decree holder has no
objection in giving instalment facility, provided substantial
amount is initially remitted by the judgment debtor.
6. Considering that the decree debt due as and
when Ext.P4 order was passed was more than
Rs.1,36,000/-, I find that the request to discharge the
decree debt in instalment can be extended to the
judgment debtor only on condition of depositing a portion
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of the decree debt at the first instance. The judgment
debtor shall deposit Rs.25,000/- towards the decree debt
within one month from the date of this judgment as a
condition precedent for having an instalment facility to
discharge the balance amount due under the decree at
the rate of Rs.10,000/- per month, so that the entire
decree debt is discharged in 12 equal monthly
instalments. In case on the 12th instalment, the balance
amount due under the decree is found to be more than
Rs.10,000/- he shall remit the entire sum, irrespective of
the amount of instalment fixed. Subject to the deposit of
Rs.25,000/- within the period fixed above, the instalment
payment shall start from the month of April, 2010
onwards. The instalment as above shall be paid on or
before the 5th of every month, and in case the 5th of the
month happens to be a holiday, he shall positively tender
the amount on the next working day. In the event of
default of any instalment as ordered, it is open to the
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decree holder to proceed with the execution to realise the
amount outstanding as a whole. In the event of default in
tendering initial deposit of Rs.25,000/- or of any
instalment, the court below shall straight away issue
warrant on such a request being made by decree holder
intimating the default in payment.
Subject to the above directions, the writ petition is
closed.
Sd/-
(S.S.SATHEESACHANDRAN)
JUDGE
SK/-
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