IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 265 of 2010(O)
1. M.G.THOMAS, S/O.M.V.GEORGE, RESIDING
... Petitioner
Vs
1. ELDHO, S/O.OLAPPURA VEETTIL VARGHESE,
... Respondent
2. CHANDRASEKHARAN NAIR,
3. BABY, S/O.POULOSE,
For Petitioner :SRI.V.CHITAMBARESH (SR.)
For Respondent :SRI.JIJO PAUL
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :23/06/2010
O R D E R
THOMAS P. JOSEPH, J.
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W.P.(C) No.265 of 2010
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Dated this the 23rd day of June, 2010.
JUDGMENT
This Writ Petition is at the instance of judgment debtor in
E.P.No.414 of 1999 in O.S.No.112 of 1994 in the court of learned Additional
Sub Judge-II, Thrissur. As the learned counsel for petitioner puts it, there was
an exparte decree against petitioner for payment of Rs.1,45,000/- with interest
and cost as provided in the decree. There was an attachment of the vehicle
belonging to the petitioner before judgment. But the vehicle was released to the
petitioner on executing kaichit on his undertaking to produce the same as and
when required by the court. Since amount due under the decree was not paid
respondent No.1 launched execution of the decree and there was a direction by
the executing court to the petitioner to produce the vehicle which was attached
and released to him on kaichit. Since that direction was not complied a warrant
of arrest was issued to the petitioner. That order is under challenge in this Writ
Petition. Learned counsel for petitioner states that petitioner had preferred an
objection to the application but executing court issued direction to the petitioner
to produce the vehicle in court. According to the learned counsel, vehicle was
subject to hire purchase agreement and on account of default in payment of
installments the financier seized the vehicle and hence petitioner was not able to
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produce the vehicle in court. Learned counsel for respondent No.1/decree
holder stated that no objection had been preferred to the application in the
executing court.
2. Even as per the statement of learned counsel for petitioner it would
appear that counter to the application was preferred only on the day the order
was passed, presumably after the passing of Ext.P2, order . It is not disputed
that petitioner had not produced in court the vehicle released to him on kaichit.
As per that kaichit he was bound to produce the vehicle in court as and when
required. That was not complied. It is in these circumstances the impugned
order was passed. There is no reason to interfere.
3. Learned counsel now seeks indulgence of the court. Learned
counsel submits that petitioner has already paid Rupees one lakh to respondent
No.1 and that balance amount payable is Rs.2,80,000/-. Learned counsel
submits that petitioner is prepared to pay the amount in installments. Learned
counsel has highlighted difficulties being experienced by petitioner. Learned
counsel for respondent No.1 states that petitioner is affluent enough to pay the
amount due under the decree.
I have heard counsel on both sides as to the grant of installment facility.
Having regard to the facts and circumstances of the case and after hearing
learned counsel for respondent No.1 also I consider that it is just and proper to
give petitioner some time to pay the amount due under the decree.
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Resultantly this Writ Petition is disposed of in the following lines:
i. Petitioner is permitted to pay the balance amount due under the
decree in ten (10) equal monthly installments beginning from 01.07.2010
onwards.
ii. The payment for the month of July, 2010 shall be made on or
before 10th of that month. The installment for the subsequent months shall be
paid on or before 5th of the month concerned.
iii. Petitioner shall deposit the amount as aforesaid in the executing
court for payment to respondent No.1 and with notice to counsel for respondent
No.1.
iv. In case the amount as aforesaid is not paid within the time granted
or, there is default in payment of any two installments it will be open to
respondent No.1 to proceed with execution pursuant to the order under
challenge.
THOMAS P.JOSEPH,
Judge.
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