IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 21433 of 2010(O)
1. THOMAS, S/O. THOMAS,
... Petitioner
Vs
1. RAJAPPAN, S/O. ANANDAN, KARIMARTHUMKAL,
... Respondent
For Petitioner :SRI.M.N.SANJITH
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :12/07/2010
O R D E R
THOMAS P. JOSEPH, J.
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WP (C) No. 21433 of 2010
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Dated this the 12th day of July, 2010
J U D G M E N T
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Judgment debtor in E.P No. 14/09 in O.S No.289/99
challenges Exhibit P7, order of learned Munsiff, Pala
holding that petitioner has sufficient means to pay the
decree debt but is neglecting to pay the amount. It
started on an agreement executed by petitioner in favour of
respondent for sale of 53.6 ares of land for a total
consideration of Rs.7,25,000/- (Rupees Seven lakh twenty
five thousand only). Petitioner received certain amount by
way of advance. Alleging that he did not perform his part of
the contract respondent filed suit against petitioner for
return of advance money. That resulted in a decree in
favor of respondent. Petitioner has come with a contention
that he has no means to pay the amount. He also claimed
that he is suffering from back pain.
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2. Respondent gave evidence as PW1 and stated to the
means of petitioner. Petitioner was examined as DW1. He
stated that he has disposed of the property which was
subject matter of the agreement for sale. He utilized the
sale proceedings to discharge certain other liabilities. He
also claimed that he is suffering from back pain and is
unable to move about. The physician who issued Exhibit X1,
Medical certificate was examined as DW2. Execution court
rejected evidence of DW1 and 2 and found that petitioner
has sufficient means. It is contended by learned counsel
that finding of the Court below is not correct. According to
the learned counsel there is no evidence that presently
petitioner has means to pay the decree amount.
3. DW2, physician, stated that he treated the
petitioner for disk complaint and for the said purpose
issued Exhibit X1. Treatment was at his residence. Apart
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from Exhibit X1, no other document has been produced by
petitioner to prove his alleged illness or treatment. In the
circumstance, plea of illness stated by petitioner cannot be
accepted.
4. According to the petitioner he is presently residing
with wife and children in a plot having 2-3 acres in extent
mainly cultivated with rubber. Petitioner claimed that the
said property belonged to his wife and that his wife and
father-in-law disliked his staying in that house. No
document is produced to show that the said property
belonged to the wife of petitioner. Assuming that the said
property belonged to the wife of petitioner, it is not
disputed that property which was subject matter of
agreement for sale and which belonged to the petitioner
was, after the agreement for sale disposed of and petitioner
got the sale consideration. Even as per the agreement for
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sale, consideration was Rs.7,25,000/-(Rupees Seven lakh
twenty five thousand only) and as per version of petitioner
as DW1 he sold that property for Rs.6,25,000/- (Rupees Six
lakh twenty five thousand only). It is not as if petitioner was
not having the means. He could have discharged the
liability then.
5. This Court in Kuppu Swami Vs. P.G. Menon (1992
(2) KLT 203) has stated that it is not necessary that decree
holder should adduce evidence regarding all details of
source of income of judgment debtor. If some evidence
regarding income is produced, it is for judgment debtor to
controvert that. Evidence of petitioner as DW1 is not
sufficient to controvert evidence produced by the
respondent. As such I do not find reason to interfere with
the order under challenge.
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6. Learned counsel requested that petitioner may be
granted some time to discharge the liability. Considering
the facts and circumstances, I am inclined to give
petitioner two months time from this day to discharge the
liability.
Resultantly, this writ petition is disposed in the
following lines:-
1. It is directed that warrant of arrest issued to
the petitioner will stand in abeyance for a period
of two months from this day subject to the
following conditions.
a. Petitioner shall deposit in the
executing Court for payment to the
respondent of Rs. 25,000/-(Rs. Twenty
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five thousand only) within three weeks
from this day.
b. Petitioner shall deposit the balance
amount due under decree in the
execution court within two months
from this day.
2. Incase of non compliance with either of the
above conditions it will open to the executing
court to proceed with personal execution against
petitioner pursuant to Exhibit P7, order without
any further enquiry regarding his means.
THOMAS P. JOSEPH,
JUDGE.
rkc