IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29806 of 2008(W)
1. T.C.SANKARAN, S/O.CHATHAPPAN,
... Petitioner
Vs
1. THE SOUTH MALABAR GRAMIN BANK,
... Respondent
2. SMT.ANITHA KUMAR, W/O.LATE K.P.PRATHAPAN
3. K.V.ARUN, S/O.LATE K.P.PRATHAPAN, AGED
4. K.V.KIRAN, S/O.LATE K.P.PRATHAPAN,
For Petitioner :SRI.P.V.KUNHIKRISHNAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :14/10/2008
O R D E R
M.N.KRISHNAN, J
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W.P.(C) No.29806 OF 2008
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Dated this the 14th day of October 2008
JUDGMENT
This writ petition is filed against the order of the Munsiff’s Court,
Parappanangadi in E.P.No.100/2006 in O.S.No.48 of 2005 whereby the
warrant of arrest has been ordered against the writ petitioner. The execution
petition is one for realisation of about Rs.60,000/- and the writ petitioner is
an employee having a total remuneration of Rs.9,218/- and there are large
number of deductions in the salary and his carry home salary is not adequate
and therefore he has put forward the plea of no means. The court below
accepting the affidavit of the decree holder and on perusal of the documents
held that there is sufficient means. A person who is having a salary of
Rs.9,218/- cannot be permitted to walk away after undertaking to discharge
the liability on the ground that he has to pay other debts. Therefore I do not
propose to interfere with the decision rendered by the learned Munsiff. But,
at the same time, the real beneficiary, viz., the principal debtor is said to be
having sufficient means to pay the amount and the bank is not proceeding
against the principal debtor for realisation of the amount. I am conscious of
WP(C)29806/2008 -:2:-
the fact that the liability of a surety is co-extensive with that of a principal
debtor and one cannot dictate to the decree holder to proceed against the
principal debtor. But, at the same time, the principles of equity, justice and
good conscience always warrant the decree holder to proceed against the
person who had enjoyed the benefits of the debt and therefore I feel there
must be some steps taken by the bank against the principal debtor as well.
Considering the nature of the contentions, I feel that the present writ
petitioner can be permitted to pay the decree amount in 10 equal monthly
instalments and the first instalment is to commence on 5.12.2008. If there is
default of the payment of the first instalment and thereafter of any two
consecutive instalments, the bank will be at liberty to proceed against the
writ petitioner for realisation of the entire amount. At the same time, I also
remind the bank to proceed against the principal debtor so that hardship
caused to the writ petitioner can be reduced.
Writ petition is disposed of as above.
M.N.KRISHNAN, JUDGE
Cdp/-