IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 23737 of 2004(A)
1. RAJAN, S/O.PUTHIYEDATHUVEETIL
... Petitioner
Vs
1. ANJALI KURRIES & LOANS PVT.LTD;
... Respondent
2. RAVEENDRAN, S/O.THATTANPARAMBIL
3. RAGHUNANDANAN, S/O.VARAVOOR VEETTIL
4. SARADA, D/O.THATTANPARAMBIL
For Petitioner :SRI.V.A.PRADEEP KUMAR
For Respondent :SRI.V.M.KRISHNAKUMAR
The Hon'ble MR. Justice PIUS C.KURIAKOSE
Dated :16/01/2008
O R D E R
PIUS C. KURIAKOSE,J.
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W.P.(C) No.23737 of 2004
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Dated: 16th January, 2008
JUDGMENT
Under challenge in this Writ Petition filed by the judgment-
debtor is an order by which the court below has directed arrest and
detention of the judgment debtor on the reason that he has not
discharged the decree debt in spite of having sufficient means to do
so. The total decree debt as claimed by the decree-holder is
Rs.1,41,561/-. On noticing the contention of the petitioner that he
has no means to pay the decree debt, the court below conducted an
enquiry under Rule 40 Order XXI. The evidence consisted of Ext.A1
employment certificate relating to the petitioner on the side of the
respondent-decree-holder and Ext.B1 salary certificate and the
petitioner’s testimony as R.W.1 on the side of the petitioner. Ext.B1
reveals that the petitioner is receiving net salary of Rs.1505/-. The
court below relied on Ext.B1 to hold that the petitioner has having
sufficient means to pay the decree debt. The writ petitioner impugns
the order on the ground that the court below had not applied its mind
to Section 60 of the C.P.C. The unattachable portion of the salary
should not have been taken into account while reckoning his salary
for the purpose of determining the liability to arrest. It cannot be said
W.P.C.No.23737/04 – 2 –
that the above ground is totally without merit. But at the same time,
it should be noticed that the question which the execution court is
called upon to decide while determining whether a judgment debtor is
liable to be arrested in execution of a money decree is whether the
judgment-debtor has after the passage of the decree sufficient means
for paying off the decree debt or a substantial portion of the same.
The enquiry in this case was conducted three or four years after the
decree was passed. Even going by Ext.B1 salary certificate, the total
emoluments drawn by the petitioner is Rs.4347/-. The salary
certificate is of the year 2003 and the impugned order is passed in
2004. It is seen that the petitioner did not have much difficulty in
complying with the order of this court passed on 11.8.04 that he
shall pay a sum of Rs.10,000/- towards the decree debt. Under these
circumstances, I dispose of the Writ Petition issuing the following
directions:
The order of stay presently passed by this court and in currency
even now will continue for a period of six more months on condition
that the petitioner pays a further amount of Rs.15,000/- towards the
decree debt within one month from today. If it is seen that the
petitioner has paid at least total amount of Rs.25,000/- (including the
W.P.C.No.23737/04 – 3 –
payment directed above after the impugned order was passed), the
court below will reconsider the question whether the petitioner is
liable to be arrested. As the first stage in the further enquiry in the
matter, the petitioner will produce his latest salary certificate before
the court below. Once latest salary certificate is produced by the
petitioner, the court below will consider that salary certificate and
pass fresh orders on the question as to whether the petitioner is
liable to be arrested. It is made clear that if at least a sum of
Rs.25,000/- is not paid as directed above towards the decree debt,
the impugned order will stand confirmed.
srd PIUS C.KURIAKOSE, JUDGE